Williams & Hatheway (No 3)
[2022] FedCFamC1F 304
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Williams & Hatheway (No 3) [2022] FedCFamC1F 304
File number(s): SYC 7523 of 2013 Judgment of: REES J Date of judgment: 11 May 2022 Catchwords: FAMILY LAW – PARENTING – Litigation commenced when the child was less than one year old – Interim orders made in 2019 for the child to spend unsupervised day only time with the father – Where the mother did not facilitate the father’s time with the child accordingly – Where the father seeks an increase in time spent with the child – The mother is highly anxious and opposes any increase in time – No risk to the child in spending overnight time with the father – Where the child is nine years old and emotionally ready to spend nights away from the mother – Orders for the child to spend increasing periods of overnight time with the father and other ancillary orders. Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) s 7.01
Division: Division 1 First Instance Number of paragraphs: 169 Date of hearing: 2, 3 & 4 May 2022 Place: Sydney Counsel for the Applicant: Mr Pickering Solicitor for the Applicant: Ark Law Lawyers Counsel for the Respondent: Ms Yu Solicitor for the Respondent: Inner West Solicitors Pty Ltd Counsel for the Independent Children's Lawyer: Mr Havenstein Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 7523 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WILLIAMS
Applicant
AND: MS HATHEWAY
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
REES J
DATE OF ORDER:
11 MAY 2022
THE COURT ORDERS:
1.That the mother have sole parental responsibility for the child, Z born in 2013 subject to the provisions of Orders 15, 16 and 17.
2.That as soon as practicable, and where possible at least 21 days before making a decision, the mother notify the father of any proposed decision concerning Z’s education, including but not limited to any proposed decision which relates to:
(a)A change in the school which Z is attending;
(b)The secondary school in which she intends to enrol Z;
(c) Any serious disciplinary issue or behavioural issue concerning Z;
(d)Any concern expressed by Z’s school from time to time about a learning difficulty or special need on Z’s part.
3.That as soon as practicable, and where possible at least 21 days before making a decision, the mother notify the father of any proposed decision concerning Z’s health, including but not limited to any proposed decision which relates to:
(a)Any referral for Z to consult a specialist medical practitioner;
(b)Any referral for Z to consult an allied health professional;
(c)Any operation or surgical procedure for Z;
(d)Any change in Z’s usual general practitioner.
4.That the father shall be responsible for the daily care, welfare and development of Z when Z is spending time with the father.
5.That the mother shall be responsible for the daily care, welfare and development of Z when Z is living with the mother.
6.That Z live with the mother when not spending time with the father pursuant to these Orders.
7.That Z continue to have contact with the father in accordance with the arrangements in place immediately before the making of these orders for two further occasions of weekend contact.
8.That, from the third occasion of weekend contact after the making of these orders, Z spend time with the father during school terms as follows:
(a)Each alternate weekend from Saturday evening at 6.00 pm, the father to collect Z from the paternal grandparents home, until the start of school on Monday, the father to return Z to school.
(b)Each Wednesday afternoon from after school until 6.30 pm, the father to collect Z from school and return him to the mother or her nominee at K Shop in N Centre, Suburb P (“K Shop”).
9.That for the purpose of any changeover at the home of the paternal grandparents, whether in term time or in school holidays, the mother is to cause Z to be delivered to the home of the paternal grandparents 30 minutes before the scheduled start of contact and the father shall not attend within 500 metres of the paternal grandparents’ home before the time contact is scheduled to start.
10.That for the purpose of changeover at K Shop, whether in term time or in school holidays, each of the parents is to leave the changeover point immediately upon Z’s coming into the care of the mother.
11.That until Z’s starts high school, he shall have contact with the father in school holiday periods as follows:
(a)In the school holidays at the end of terms 1, 2 and 3, for three nights in the first week of the holidays commencing at 10.00 am on the first Saturday of the holiday until noon on the following Tuesday.
(b)In the long Christmas holiday for four nights commencing at 10.00 am on 26 December and ending at noon on 30 December; and for a further period of four nights, in the absence of agreement to begin on the second Saturday after 1 January at 10.00 am and to end at noon on the day after the fourth night.
12.That for the purpose of holiday contact, in the absence of agreement, the mother shall cause Z to be delivered to the home of the paternal grandparents at 9.30 am at the start of the holiday period and the father shall return Z to the mother at K Shop.
13.That in the school holidays after the first term Z’s goes to high school, in the absence of agreement, he shall spend school holiday time with the father as follows:
(a)In the holidays at the end of terms 1, 2 and 3, for one week starting on the first Saturday of the holiday when the mother shall deliver Z to the home of the paternal grandparents at 9.30 am and the father shall return Z to K Shop at 6.00 pm the following Friday.
(b)In the Christmas holidays for three weeks commencing at 9.30 am on 26 December when the mother shall deliver Z to the home of the paternal grandparents and ending at 6.00 pm three weeks later when the father shall return Z to the mother at K Shop.
14.That after each period of school holidays, weekend contact in accordance with Order 8(a) commences on the first weekend of the school term.
15.That these Orders do not prevent either parent from attending a parent/teacher interview at the school and both parents shall be entitled to attend separate parent/teacher interviews.
16.That the mother’s consent is not required for Z’s participation in a parent/teacher interview with the father.
17.That the father and the mother are both authorised to receive from Z’s school the following:
(a)Copies of all emails, newsletters and other correspondence usually sent to parents of students attending the school;
(b)Any correspondence from the school specifically pertaining to Z, including copies of certificates or awards;
(c)Copies of Z’s school report issued from time to time;
(d) School photograph order forms.
18.That each parent download and install the communication app “My Family Wizard” and ensure that the app is active at all times.
19.That except in the case of emergency, the father and the mother shall communicate with each other about issues concerning Z using “My Family Wizard”.
20.That in the case of an emergency concerning Z, the father and the mother shall communicate with each other by text message.
21.That in the event of any medical or other emergency concerning Z, the parent who has care of Z shall notify the other parent of the nature of the emergency, and if the emergency requires hospitalisation, the name of the hospital where Z will be treated, as soon as practicable and in any event within 30 minutes of the emergency occurring.
22.That if the emergency concerning Z requires medical treatment or hospitalisation, and at the time of the emergency Z is in the father’s care, the mother shall be at liberty to attend the medical practitioner or hospital to authorise any medical treatment and upon the mother’s arrival, the father shall depart if requested by the mother.
23.That the father and the mother shall keep each other informed at all times of their residential address and contact details, including email address and telephone number for text messages.
24.That the father and the mother shall notify each other of:
(a)Any proposed change to their residential address not less than 28 days before the move to the new address takes place;
(b)Any change to their email address or telephone number for text messages within 48 hours of the change taking place; noting that this Order does not entitle the mother to change Z’s place of residence so as to make it significantly more difficult for the child to spend time with the father.
25.That upon commencing high school, Z can telephone his father in accordance with his wishes.
26.That the father shall not enter the mother’s property at G Street, Suburb E.
27.That the father shall not have paying guests stay at his premises when Z is in the father’s care.
28.That the father shall not permit any paying guests to use Z’s bedroom while staying at his premises.
29.That the operation of Order 8(a) is suspended on the weekend of Mothers’ Day.
30.That on Fathers’ Day, if Z is not spending time with the father in accordance with Order 8(a), he shall spend time with the father from 10.00 am until 6.30 pm and the mother shall deliver Z to the home of the paternal grandparents at 9.30 am and the father shall return him to the mother at K Shop at 6.30 pm.
31.That each parent is restrained from:
(a)Denigrating the other parent, or speaking in a derogatory or insulting way about the other parent, or any member of the other parent’s family, to Z or in Z’s hearing.
(b)Allowing Z to remain within hearing of any third party who is denigrating the other parent, or speaking in a derogatory or insulting way about the other parent, or any member of the other parent’s family.
(c)Discussing the issues in these proceedings and any other aspect of these proceedings with Z.
(d)Showing Z any document prepared during these proceedings and is further restrained from allowing Z to view such documents.
32.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Williams & Hatheway has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Proceedings to determine the parenting arrangements for Z who was born in 2013, and is now nine years old, were heard in 2019 and judgment was delivered on 11 April 2019. Orders were made on an interim basis only and the matter was adjourned, part heard. These reasons should be read in conjunction with the earlier reasons.
In the hearing in 2019, Ms Hatheway (“the mother”) alleged that Z had either been sexually abused by Mr Williams (“the father”) or was being groomed for sexual abuse by him. Neither of those allegations was accepted.
The interim arrangements provided for Z to spend time with his father each Wednesday after school until 6.30 pm and on alternate Sundays from 9.00 am until 7.00 pm. The orders also provided for each parent to undergo a course of therapy which was to be reportable only as to the fact of the attendance and compliance with the process and any recommendations of the therapist. The orders allocated parental responsibility to the mother, pending further order.
The interim orders were expressed to remain in effect until the conclusion of Term 4 of 2020.
The operation of those arrangements was to be reviewed by a family consultant who was to prepare a report before the resumption of the hearing.
The resumed hearing was delayed because the father filed and prosecuted an application alleging that the mother had contravened those orders. That application was heard on 5 October 2021 and a finding was made that the mother had contravened the orders, without reasonable excuse, between 6 September 2020 and 2 December 2020. The mother was placed on a bond, for a period of 12 months, to be of good behaviour and to comply with the existing and any future orders.
Before me, the father seeks orders that Z spend time with him during term time, each Wednesday afternoon from after school until 7.00 pm and on alternate weekends from 6.00 pm on Saturday until school starts on Monday. The father works every Saturday during school terms and is dependent on that income. The father also seeks time with Z for one week in each of the short school holidays and on a week about basis during the long Christmas holidays.
The father does not seek parental responsibility but seeks a continuation of the requirements of consultation that were Orders 2 and 3 of the orders made on 11 April 2019.
The mother seeks orders which do not include Z’s spending any overnight time with the father. She proposes that Z spend time with the father each Wednesday after school until 6.30 pm and each alternate Sunday from 9.30 am until 5.30 pm which is a reduction of the time orders in 2019. She also seeks that Z spend non-consecutive, day time only periods with the father in school holidays.
Before me, the father relied on an affidavit sworn by him on 26 April 2022.
The mother relied on an affidavit sworn by her on 19 April 2022 and an affidavit by her therapist, Ms L sworn in December 2020 which annexed reports from Ms L dated 31 August 2020, 9 October 2020, 6 November 2020 and 3 December 2020. Ms L was not required for cross-examination.
The Court was assisted by an Independent Children’s Lawyer (“ICL”) and by two reports from a family consultant dated 21 September 2020 and 20 November 2020.
It is to be remembered that this matter has already been the subject of three reports from Dr D, a child and family psychiatrist, in 2015, 2017 and 2019 and that the parents have been in dispute about the time Z spends with his father since shortly after his birth. These proceedings were commenced firstly in 2013.
EVENTS AFTER 11 APRIL 2019
In order to understand some of the events that have occurred and the respective positions of the parents, there needs to be a brief explanation of their current circumstances.
The father is an educator who conducts lessons on school days at a number of schools mainly at Suburb U and Suburb M. On Saturdays, he has lessons all day from 8.30 am until 5.30 pm in Suburb V. The father lives in Suburb T. The father’s parents live in Suburb V.
The mother and Z live in Suburb E. The mother does not presently work.
The travelling time from Suburb T to Suburb E is about an hour but no doubt can be longer.
The orders made on 11 April 2019 provided for the changeovers for Z to be either at his school in Suburb E or at Organisation A at Suburb B (“Organisation A”) which is a short distance from the mother’s home.
On Wednesday afternoons when the father collects Z from school, they stay in the Suburb E area. On Sundays, the father collects Z from Suburb B and returns him to Suburb B with the effect that Z spends two hours on Sunday travelling and the father spends four hours travelling.
The first occasion on which the father was to collect Z from school was on 1 May 2019. Order 57 of the orders made on 11 April 2019, which was made by consent and without admissions provides:
57. That the father shall not enter the mother’s property at [G Street], [Suburb E].
The school which Z attends is bounded by G Street on the west, Q Street on the south, S Street on the east and R Street on the north. The mother lives in G Street.
The father deposed that he could not find a parking spot in S Street but he found one in R Street. The father deposed that, as he walked Z to his car, Z asked if he could show his father his house. They walked to Z’s house about a two minute walk away. The mother was at work. The father remained on the footpath and did not enter the mother’s property. The father deposed that they remained at the house for about three minutes and then Z walked his father over to his neighbour’s house and rang the bell. Z introduced his father to another child and the father suggested that they leave.
There is no evidence that the father acted in breach of the order.
The mother deposed that Z showed her where his father had parked his car which was about 100 metres away from the mother’s home. Z did not suggest to his mother that the father had entered onto her property. She conceded in cross-examination that it was likely that Z would have been excited to show his father where he lived and to introduce his friend from next door.
Nevertheless, the mother caused her solicitor to write to the father seeking his undertaking that he would not approach within 100 meters of her home.
The father deposed that, on 8 May 2019, after the father collected Z from school, Z asked his father if he could show him his front yard and said “Mum said its ok”. The father deposed that he stayed on the footpath and Z described the front yard in greater detail for about three minutes and then they left.
The mother deposed that Z told her that he and his father had come to the house and “I was showing him our yard after school”. Z asked “is Dad allowed to come into our house?” and the mother deposed that she said:
“[Z], Dad is not supposed to come to our house. Mum and Dad don’t agree on some things and someone has made a decision that Dad is not to come to our house”. [Z] responded, “but it was my plan, Dad told me”.
Again, Z did not suggest that the father entered the mother’s property and there is no evidence that he did so. The mother was not at home.
The mother instructed her solicitor to write to the father seeking an undertaking that he not go within 100 metres of her home, in default of which she would apply for a restraining order. She installed a CCTV camera.
On 22 May 2019, the father said Z had a shiny pebble that he wanted to put in his letter box before he and his father went to see a movie. The father said that he remained on the footpath and Z entered the property. Z put the pebble in the letter box. They left.
The mother annexed a still photograph from the CCTV footage which clearly shows Z in the front yard but does not show the father. She deposed that the CCTV system recorded the following conversation between Z and his father:
[Z]: No, no delivery parcel. Common let’s get going and see [the movie].
Father: Yep. Now the first session’s at three forty five, ok…
In cross-examination, counsel for the father asked the mother whether she had viewed the whole of the footage so as to assure herself that the father did not enter the property and she agreed that she did so and that there was no footage of the father on that day. Shortly after, in answer to another question, she said that there was footage of Z and his father walking away. I do not accept that evidence. Not only does it contradict her earlier evidence, had there been such footage, it would have been annexed to her affidavit.
The mother conceded that she had found the pebble in the letter box.
Notwithstanding that there was no evidence to support her claim, the mother insisted that the father had entered her property.
The mother does not assert that the father has been to her property, even on the footpath, since 22 May 2019.
Difficulties arose in February 2020 with the onset of the COVID-19 pandemic.
After a scheduled contact occasion on 5 February 2020, the mother emailed the father asking that he have a COVID test and provide a medical certificate indicating that he “was clear of illness” before the next visit with Z. The father provided a certificate from his doctor dated 9 February 2020 stating that he was recovering from a respiratory tract infection.
On 12 February 2020, and on numerous Wednesdays thereafter, the mother collected Z early from school on Wednesday and advised the father that Z would not be available for contact because the father had not provided COVID test results.
On 16 February 2020, the father provided a certificate that he was COVID free and the mother “resumed” the visits.
On about 25 March 2020, the parents were notified that Organisation A was closed and could not facilitate changeovers. The mother proposed that Organisation A supervise phone calls between Z and his father. Why such supervision was necessary is not explained.
The father suggested, in an email to the mother on 4 May 2020, that she dial his number and give the phone to Z. The mother refused. The mother in cross-examination said that she never considered simply dialling the father’s number and letting Z speak to him. As a consequence, there was no contact between Z and his father until 20 May 2020.
In May 2020, the father filed an application which was heard in the Court’s COVID list.
On 13 May 2020, orders were made by consent which provided for changeovers to occur in a shopping centre at Suburb P.
Contact resumed on 20 May 2020 with the parents conducting the changeover in person and continued until 2 September 2020.
The mother deposed that, on the advice of her psychologist, she stopped Z’s contact with his father for two weeks. The psychologist, Ms L, confirmed in her report dated 9 October 2020 that she advised the mother to stop contact.
On Wednesday 9 September 2020, Z did not go to school.
On 18 October 2020, the father suggested that his mother could conduct the changeovers. That suggestion was rejected by the mother.
The father sought and obtained Z’s school attendance records which confirmed Z’s non- attendance or early departure from school on Wednesdays, including every Wednesday in Term 4 of 2020.
The father again proposed that his mother conduct changeovers on 20 November 2020.
The orders made on 11 April 2019 expired at the end of Term 4 of 2020. The ICL attempted to mediate a continuation of the contact.
On 16 December 2020, the father filed an Application – Contravention asserting that the mother had breached the orders of 1 April 2019 between 6 September 2020 and 2 December 2020.
The father was offered a parent/teacher interview at Z’s school. The mother refused to allow Z to participate in the interview and Z was not aware that his father had been to the school.
On 4 January 2021, the mother sent an email to the father asking him to communicate with her only on a nominated email address.
On 29 March 2021, the father asked the mother if he could attend Z’s school cross-country carnival. She refused.
On 31 March 2021, with the assistance of mediation, it was agreed that contact would resume and the paternal grandmother would facilitate changeover at a shopping centre near the mother’s home.
On 9 April 2021, Organisation A was able to facilitate changeover and Z spent four hours with his father. There had been no face to face contact between them for 31 weeks.
The mother, in cross-examination, said that during this period, Z asked her when he was going to see his father again but that she “wasn’t in the right frame” to do more to facilitate contact or to facilitate Z’s speaking to his father on the telephone.
Sydney entered another lockdown on 26 June 2021. The mother and the father were unable to negotiate arrangements for changeovers, notwithstanding the orders of 13 May 2020 which provided the mechanism for changeovers when Organisation A was not available. Z did not see his father until Sunday 11 July 2021 when the changeover at Suburb P was facilitated by the paternal grandmother.
On 5 August 2021, the father’s green provisional driver’s licence was suspended for a month. The father wrote to the mother and advised her and asked her to facilitate continuing contact with Z by driving Z to Suburb T where the paternal grandmother would facilitate the changeover.
The mother refused and again offered phone calls supervised by Organisation A.
The father sent the mother copies of the relevant Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021, highlighting, in the list of “reasonable excuses” the following:
For children who do not live in the same household as their parents or siblings or one of their parents or siblings – giving effect to new or existing arrangements for access to, and contact between, parents and children or siblings.
The mother was unpersuaded.
There was no contact between Z and his father for four weeks.
The father’s licence was reinstated on 3 September 2021 and contact resumed.
On 5 October 2021, the contravention was heard. The mother was found to have contravened the orders of 11 April 2019 without reasonable excuse and was placed on a bond for a period of 12 months to comply with current and future parenting orders.
Organisation A reopened on 19 October 2021 but no longer were able to facilitate changeovers on Sunday. The mother proposed that the parents engage a private supervisor for Sunday changeovers at a cost of $110.90 for each of them. The father wrote and advised that if Z were not brought to the changeover on Sunday 31 October 2021, he would file a further Application–Contravention. Z was brought to the changeover by a person arranged by the mother.
On 20 February 2022, the mother made a complaint to police that the father had contacted her by email at an address which was not the address she had asked him to use. The mother had four active email addresses. The mother told police that between 15 January 2021 and 5 October 2021, a period of nine months, the father had used an address other than her preferred address on nine occasions. In her complaint the mother stated:
I have thought about blocking [the father’s] name from my contacts and this was also suggested by the [Domestic Violence Liaison Officer]. However, I have made enquiries about his [sic] and I was told by Apple that if I do this I will no longer have access to [the father’s] emails, which I need for our Family Court matter.
I would like for Police to determine the appropriate course of action and to at least warn my son’s father to only contact me according to our Court Orders and only via the email address on my most recent Notice of Address for Service – as was emailed to him on 18 December 2020.
In cross-examination, the mother said that she could not block the father from the email addresses which she did not want him to use because she needed the emails to use as evidence. When it was suggested to her that she could have printed the emails then blocked the father she said that was too upsetting.
The police contacted the father and advised him of the complaint. The father told the police that his use of the other email addresses was not deliberate but that he had inadvertently replied to the mother using an old email thread. He has since ensured that cannot happen again.
In cross-examination, the mother conceded that the tenor of the father’s emails to her was polite and she was not able to demonstrate any inappropriate content.
THE EVIDENCE OF THE FAMILY CONSULTANT
The interviews for the report took place in July, August and September 2020 but due to the restrictions in place because of the COVID-19 pandemic, some interviews took place remotely. Z was then seven years old.
The family consultant reported that the mother maintained her “concerns” about Z’s having been sexually abused by the father. She raised further concerns about the father’s parenting, such as, that he took Z for a bushwalk when smoke levels were high; that he “overexerts” Z; that he does not ensure that Z wears his bike helmet; that he allows Z to ride a scooter without a helmet; that he does not use hand sanitiser and that he is late for Wednesday afternoon pick-ups.
The family consultant was able to interview Z and to observe Z’s interaction with his father in person.
Of her interview, the family consultant reported:
77.[Z] then volunteered that he really loves his “Mum”, just as much as “Dad”, but a bit more than “Dad”. He said that he is so happy to have [the mother] as his mother, and that he is so spoiled by her. He said that she allows him to leave his toys all over the dining room table and that she is the best mother. He said that he will be the best parent when he becomes one, because he has such a good mother.
78.[Z] told the Family Consultant that he wants to live with his mother, only. He said that he would not be happy living with his father. The Family Consultant asked why he thinks living with his father is a possibility, and [Z] said that his mother told him so. He said that he may have to live with his father half of the school holidays, or on certain nights, and he seemed to be trying to remember a previously proposed arrangement.
79.The Family Consultant asked [Z] how he would feel about spending one or two nights at a time with his father, if he knew that he would carry on living mostly with his mother. [Z] said that [the father’s] “unit” is very tiny and too far to go to school, and that there are travellers (tenants) there. He added that he would miss his mother. When asked, [Z] agreed that he would feel better about staying overnight with [the father] if there are no “travellers” there.
80.[Z] said that he sees his father all day, once per fortnight, and that it is a long day. He said that they mostly stay in [the father’s] apartment because of COVID-19 concerns. Z said that his mother has told him that [Suburb T] – where [the father] lives – is a (COVID-19) “hotspot”. [Z] was asked how he feels about holiday time with [the father]. He said that [the father] is not a very good driver and that they might get lost.
Z told the family consultant that there is nothing he doesn’t like about his father.
Of his interaction with his father, the family consultant reported:
87.…[Z] seemed very happy to see his father and hugged him in greeting, and climbed onto his lap. They held hands walking into the room and [Z] showed his father the game he had previously been playing with his mother.
The family consultant described a relaxed and affectionate interaction between Z and his father. She wrote:
94.[Z] presents as an intelligent and active young child who seemed to respond warmly to his mother and his father. His behaviour and general demeanour suggest that he feels loved by both his parents. The observations of [Z] with [the mother] and [the father] were fairly brief; however, [Z] impressed as keen to spend time with his mother and his father and his enthusiastic interactions with each of them seemed authentic. Although [Z] was aware that he was participating in an assessment, there was no sense that he was faking his behaviour and mood.
The family consultant stated:
95.[Z’s] comments and manner when speaking about [the father] were largely positive, although some of his comments about their activities and [the father’s] living arrangements also suggested that [Z] holds some anxieties about his time with his father. [Z] also seemed specifically concerned about the possibility of spending increased time with [the father], such as blocks of time during school holidays. Although [Z] referred to being concerned about living with [the father], it was not clear that he understands that this would mean a significant change to his parenting arrangements. While it is valid that [Z] may be uncomfortable about some aspects of [the father’s] approaches and living arrangements, some of his comments seemed to reflect a degree of adult input, most likely exposure to his mother’s comments.
96.It seems feasible that, given the close relationship [Z] has with his mother, he would be aware of her anxieties, including her long-held concerns about him spending overnight time with [the father], and also her more recent COVID-19 concerns. However, it is not considered helpful for [Z] if there are overt warnings about the prospect of overnights with [the father], as this would heighten his anxiety and possibly burden him with a sense of responsibility.
At the time of the interview, the father told the family consultant that he intended to continue to rent out the second bedroom at his home as a short term rental and the family consultant stated that this was not, “compatible with providing a secure and welcoming environment for a young child. Such an arrangement would likely limit Z’s sense of personal space and priority in his father’s life”.
The family consultant opined:
114.While many of [the mother’s] concerns are understandable, they do not seem to be sufficient reasons (apart from the subletting) to limit [Z’s] opportunity to spend some overnight time with [the father], while [the mother] continues to be [Z] main carer. Again, it will make it very difficult for [Z] to acclimatise to new arrangements if he has continued exposure to [the mother’s] anxieties. [Z] may benefit from some individual therapeutic support where he can air his concerns with an objective child and family professional. I[f] this referral occurs, it is important that both parents have access to any ensuing feedback or advice.
The family consultant reported the mother’s concerns and stated:
57.Regarding her concerns about sexual abuse, [the mother] said that she does not trust [the father] and that she still believes that he was touching [Z] inappropriately.
The family consultant did not support the mother’s wish to reduce the time Z spent with his father and recommended that overnight time commence on alternate weekends.
She also recommended:
9.…that [the mother] consider using her therapeutic contact to discuss ways of shielding [Z] from her own anxieties about the parenting situation
10.…that consideration is given to [Z] being referred for therapeutic support.
The family consultant prepared an addendum report dated 20 November 2020, specifically to address the reports that had been provided by the therapist for the father, Mr C and the therapist for the mother, Ms L.
THE EVIDENCE OF MS L
Before considering the addendum report of the family consultant, it is necessary to determine what parts of Ms L’s reports are able to be relied upon.
Rule 7.01(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) restricts the evidence which can be given by a treating practitioner in the following terms:
(a)evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;
…
In so far as Ms L’s reports traverse material which is outside those parameters, her evidence must be disregarded. As a consequence, if necessary, the family consultant must be instructed to disregard that evidence in coming to her opinion.
However, it was evident from the family consultant’s oral evidence that her conclusions had been formed from her own assessments of the parents and the issues and that she had not placed significant weight upon Ms L’s inadmissible evidence.
THE ADDENDUM REPORT
The family consultant stated:
20.A range of options has been canvassed as potentially in [Z’s] best interests, and the prospect of [Z] having no arrangements for spending time with his father has also been broached. However, the collateral information considered for this Addendum Family Report, including the therapists’ reports, does not change the opinion of this Family Consultant that [Z] has a significant and enduring relationship with his father. It is considered that [Z] would likely suffer a significant sense of loss if he is unable to continue this relationship. It is, therefore, considered to be in [Z’s] best interests for him to maintain his relationship with [the father], and in a meaningful way, as much as possible.
She wrote:
26.Regarding the issue of overnight time, [the mother] has been adamant that she does not believe this to be in [Z’s] best interests, at any stage. However, the (September 2020) Family Report considered that, in terms of basic care, [the father] would cope and that [Z] would enjoy overnight time. It appears to be agreed by several professionals (including this Family Consultant) that it is not suitable for [Z] to spend overnight time in a bedroom that is also being sublet.
In relation to the mother’s therapy, the family consultant stated:
32.In [the mother’s] case, she appears to have made genuine efforts to locate a suitable therapist and has maintained contact with varying levels of intensity, according to her need. However, there is also an impression that [the mother] may also benefit from more targeted work on her stress responses, in addition to the support she has received which has, no doubt, been very helpful. Her treating clinician(s) receiving the Family Report and this Addendum may assist with such targeting. It is not clear why [the mother] has not previously sought more intensive assistance prior to being obliged to do so by Court Order, given that she is reported to have some insight into her anxieties.
Ultimately, the family consultant recommended that Z have day time only contact with his father.
In her oral evidence, the family consultant said that if the issue of the father’s renting out his second bedroom to casual tenants were removed, then it was appropriate for overnight time to begin and that, emotionally, Z would be ready for that.
The family consultant agreed that the introduction of overnight time between Z and his father was inevitable.
She said that the mother would be able to manage her anxieties and that the mother has demonstrated her capability of engaging with appropriate supports and managing her anxieties.
CONSIDERATION
The primary considerations mandated by the Family Law Act 1975 (Cth) (“the Act”) pursuant to s 60CC(2) are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I accept that it is the mother’s case that Z has been exposed to family violence towards her from the father and has been and will continue to be exposed to psychological abuse from him. She also believes, as she told the family consultant in 2020, and confirmed in cross examination, that Z has been inappropriately touched by his father.
I accept that the mother’s objection to Z having overnight time with his father while there are paying guests in the apartment is entirely reasonable and that it is not appropriate for paying guests to use Z’s bedroom even when Z is not there. In cross-examination, the father accepted that Z’s room should be set up for Z alone and that it should not be used for paying guests. He did not oppose the making of orders to that effect.
However, I do not accept that it is reasonable to restrain the father, as the mother proposes, from sleeping in Z’s bedroom if he has paying guests using his own room.
The father agreed to orders which would have the effect that there would be no paying guests present on periods when Z stayed overnight.
As to the mother’s allegations about family violence, those allegations were not made out. In the reasons for judgment delivered on 11 April 2019 I stated:
132.There is a lengthy history of the mother’s complaints to the police against the father. It is sufficient to summarise the complaints:
•On 12 August 2012 the mother contacted police and reported that she had told the father that she wanted to end the relationship but he persisted in texting and phoning her. The police read the messages which they assessed to be polite. They contacted the father and asked him not to contact the mother. He agreed;
•On 17 February 2013, the day of separation, police noted an argument about mixing baby formula but no complaint of family violence;
•On 13 April 2013 the mother contacted police wanting them to take out an AVO against the father. The notes record that the mother re-iterated earlier complaints but did not disclose threats or violence. She complained about text messages from the father and the police read the messages which they interpreted as the mother sending lengthy messages to the father to which he replied briefly on occasions;
•On 26 August 2014 the mother attended at the police station to report an incident on 24 August when, she said, the father attempted to stall her leaving with [Z] to prolong the visit. Further she said, that morning the father had pushed past her when he arrived to collect [Z] and entered her residence. Police noted that the mother “re-iterated to police that she is not in fear of [the father]”;
•On 7 September 2014 the mother contacted the police and complained that the father is deliberately late when he collects [Z] and detailed her complaints about his behaviour and care of [Z]. They noted that the mother “felt like he was emotionally abusive” and being abusive to her “through their son”;
•On 5 October 2014 the mother contacted police to report an argument with the father when she was collecting [Z] from his home. She complained that she had to wait 10 to 15 minutes because [Z] wasn’t ready to leave which upset her. The mother had returned home and contacted police and was upset that they had not attended after her call. The police noted that there was no report of violence or threat of violence;
•On 15 May 2016 the mother called police having seen bicycle lights in the distance and fearful that the father was stalking her. Police noted that the mother alleged a long history of abuse but when questioned described non-threatening verbal arguments.
133.Other than as set out above, the police have not acted upon the mother’s complaints.
Other than her complaint to the police in February 2022 about email messages to the wrong address, there was no evidence about any complaint by the mother of any incident of family violence after 11 April 2019.
I am unable to find any allegation of family violence occurring after 11 April 2019 in the mother’s trial affidavit. I do not accept, as the mother asserts, that the father’s attempts to arrange contact with Z in accordance with the orders of 11 April 2019 were “threatening”.
The mother gave evidence that on one occasion when the paternal grandmother was facilitating changeover, she was told that the father, Z and the paternal grandmother had dined in a restaurant near to the changeover venue and the father was still inside the restaurant. She did not assert that she had seen the father on that occasion.
The mother’s allegations about Z’s having been sexually abused or groomed for sexual abuse were dealt with in detail in the reasons for judgment delivered on 11 April 2019 and rejected.
As to the mother’s assertions that the father is unable to recognise and meet Z’s psychological needs, despite being given ample opportunity in cross-examination to give the evidence on which those assertions are based, she was unable to do so. It was extremely difficult to direct the mother’s evidence to events after 11 April 2019. She persistently reverted to her complaints about the father’s parenting short comings when Z was a baby or a toddler. The mother raised a number of complaints, in response to cross-examination, which illustrated her concerns once the unsupervised contact started which I summarise:
·The father and Z went for a bike ride that was too far and overtired Z.
·The father allowed Z to ride a toy scooter without a helmet.
·The father doesn’t ensure that Z uses ventolin as often as he should and, on occasions, Z has been wheezing when he is returned to her.
·The father, when home schooling Z, pressed Z to do maths which was too hard.
·The father pressed Z to read for longer than Z wanted to and encouraged Z to read out loud in the car to and from change over. The father bought Z a “Goosebump” book which was unsuitable.
·The father takes Z to the supermarket and doesn’t take Z to the park and kick a ball around.
·The father’s house is not clean. (The mother has never been to his house).
·The father was late on eight occasions collecting Z from school on Wednesday afternoon in 2020.
·The father didn’t use hand sanitiser as frequently as he should or allow Z to use sanitiser when Z wanted to.
·The father didn’t sanitise his hands after patting a dog.
·The father, travelling by car from Suburb T to Suburb P, is sometimes late by 10 minutes and does not provide a satisfactory explanation.
·The father bought a new electric toothbrush but refused to buy a plush toy for Z.
The mother rejected the proposition that her real complaint was that the father was not prepared to accept her advice about how to parent Z and that his parenting style was simply different from hers.
Counsel for the ICL put to the mother that her evidence was inconsistent in that everything of which she complained about the father’s parenting applied if Z was spending day only time with his father. She rejected that proposition saying that Z was most vulnerable around bathing and bed-time and in bed.
Even if the mother’s complaints are accepted, she has not established that there is any physical or psychological risk to Z in spending overnight time with his father.
It is not disputed that it is beneficial to Z to have a meaningful relationship with his father.
There is no dispute that Z should spend day time contact with his father. The dispute is whether Z should stay overnight. Z has now been having day time only contact with his father for three years.
In cross-examination, the mother said that she could contemplate Z staying overnight with his father when he was 14 years old. I note that in 2019, the mother told Dr D that Z could spend overnight time with the father when he was nine years old. The mother, in cross- examination, said that Z has never spent the night away from her, even with her family and he has never had a sleepover with a friend.
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
In March 2017, when Dr D interviewed Z, he was enthusiastic about visiting his father’s house.
In 2019, Dr D reported that, when seen with his father, Z told his father he wanted a sleepover at the father’s house. He told Dr D when interviewed alone that he wanted to go to his father’s unit “to check it out”.
In September 2020, the family consultant stated:
79.The Family Consultant asked [Z] how he would feel about spending one or two nights at a time with his father, if he knew that he would carry on living mostly with his mother. [Z] said that [the father’s] “unit” is very tiny and too far to go to school, and that there are travellers (tenants) there. He added that he would miss his mother. When asked, [Z] agreed that he would feel better about staying overnight with [the father] if there are no “travellers” there.
Z told the family consultant that there was nothing he didn’t like about his father.
Z is nine years old and his views cannot be given great weight. There is also some indication that his views are influenced by his mother’s. For example, he told the family consultant that his mother had told him that Suburb T, where his father lives, is a COVID hotspot. The family consultant stated:
95.…While it is valid that [Z] may be uncomfortable about some aspects of [the father’s] approaches and living arrangements, some of his comments seemed to reflect a degree of adult input, most likely exposure to his mother’s comments.
96.It seems feasible that, given the close relationship [Z] has with his mother, he would be aware of her anxieties, including her long-held concerns about him spending overnight time with [the father], and also her more recent COVID-19 concerns. However, it is not considered helpful for [Z] if there are overt warnings about the prospect of overnights with [the father], as this would heighten his anxiety and possibly burden him with a sense of responsibility.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
There is no dispute that Z’s primary relationship and attachment is with his mother.
However, I accept the assessment of the family consultant that Z responded warmly to his father and was keen to spend time with him. The family consultant described Z’s interaction with his father as “enthusiastic”.
The family consultant stated in her September 2020 report:
113.If he is able to commit to a regular term time arrangement, the relationship between [Z] and [the father] suggested that [Z] would cope with spending overnight time with his father. This may be more relaxing for [Z] than being picked up and returning on the same day and allow more scope in the parenting activities that [the father] can be involved in. However, this would likely only be manageable for [Z] if [the father] addresses [Z’s] anxieties about his care, including the tenancy situation.
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The father has taken every opportunity to spend time with Z. It is notable that, although the mother has a car and, in her trial affidavit, said “I have a Driver’s Licence and a car and am able to transport Z as required”, she has not done so and, when asked by the father to assist with transport for a month when his licence was suspended, she was not prepared to do so.
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The father pays child support in accordance with an assessment.
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I accept the evidence of the family consultant that Z is emotionally ready to spend overnights away from his mother.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The practical difficulties have been as a result of the mother’s insistence on supervised changeovers and her insistence that all of the travelling for contact is done by the father.
I accept that the father cannot change his work commitments and that he must work on Saturdays until 5.30 pm. If he has to drive to Suburb B to collect Z from Organisation A, or to the Suburb P shopping centre which is the mother’s fall-back position, he cannot be there before 6.30 pm at the earliest and Z and he will not be back at the father’s home before 7.30 pm at the earliest.
Neither of them is in a strong financial position and the mother’s proposal that they pay a private supervisor to supervise changeovers is not reasonable.
The father’s solution to the issue of neutral changeovers, that the mother should deliver Z on Saturday evening to the home of the paternal grandparents in Suburb V, although not acceptable to the mother, would seem to be the best solution. The mother’s opposition to that proposal was twofold. Firstly she fears that the father will attend at the changeover and secondly, she said, the grandparents are old and will die so that is not a long-term solution.
Nothing prevents the mother from arranging for a third party to deliver Z if she wishes. She told the family consultant that she has “a strong network of family and social supports”.
The evidence does not suggest that the father will attend at the changeover if he is ordered not to do so.
Z has spent time with his paternal grandmother and is familiar with her.
The orders will provide for the mother to deliver Z to his paternal grandparent’s home by 5.30 pm and for the father not to attend at his parents’ home until 6.00 pm.
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I accept the evidence of the family consultant that the father is capable of providing care for Z in the periods when Z will be with him.
In accordance with the orders made on 11 April 2019, the father attended counselling with Mr C whose report dated 17 October 2020 was in evidence.
Mr C reported:
…
In general, in our sessions I found [the father] very committed to his responsibilities to [Z]. He very much wanted a closer relationship with [Z], but realised that that may not be easy while the tensions and disagreements between himself and [Z’s] mother were present and unresolved.
He seemed to be hoping that by his cooperation with the current requirements some easing of the tensions and disagreements could occur.
I was impressed by his acceptance of the reality of the situation even though it was quite painful for him to be so restricted in his contact with his son. I did not request a joint session so I had no contact with [Z].
…
Mr C stated that the father was dependable in his attendance and participation in counselling and appeared determined to fulfil the stated requirements and even to undertake more if that were useful, however, Mr C did not consider it necessary to conduct more sessions.
Mr C said that the father’s focus during the sessions was his relationship with Z and that he seemed to be doing his best to develop a good relationship with Z without intensifying the difficulties between the parents.
Of the mother’s parenting, the family consultant stated:
108.[The mother] impressed as a capable and loving parent, who is focused on [Z’s] well-being and care. She also presented as highly anxious and as finding it difficult, at times, to rein in her concerns. It is concerning if this results in [Z] also sharing a sense of heightened anxieties, as alluded to above, and whether this is having an impact on his relationship with his father and also, possibly, his other social interactions.
109.[The mother’s] anxieties may also result in an overprotective approach, which can have an adverse impact on a child’s developing independence and confidence in the outside world. This does not mean that all [her] expressed concerns about [the father] are invalid, but it is possible that her burgeoning anxiety complicates the assessment of her concerns. She seems to have an over-riding negative view of [the father’s] incentives and attitudes to [Z] (and to her), and this also seems to affect her view of [Z’s] relationship with his father.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Although the mother says she is committed to Z having a relationship with his father, that commitment is not obvious from her actions, especially after the orders for unsupervised contact from 11 April 2019.
The family consultant commented in September 2020 that the mother’s proposal to reduce Z’s time with his father did not seem to be reasonable or supportive of the relationship between Z and his father. She referred to the time that Z was then spending with his father as “already quite limited”.
It is important that Z has the opportunity to experience his father as a parent and to form his own attitudes to his father as a parent. He needs to have enough time to do that to counteract the influence of his mother’s anxieties about his father.
any family violence involving the child or a member of the child’s family;
I have dealt with the allegations relating to family violence earlier in these reasons.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Z is nine years old. This litigation started when he was less than one year old.
I accept the submission on behalf of the ICL that to extend the appointment of the ICL for another year, as the family consultant suggested, serves only to give another venue for the parents to continue their dispute.
The ICL has offered to see Z and explain the effect of these orders to him and, once that task has been completed, the appointment of the ICL will end.
WHEN SHOULD OVERNIGHT TIME START?
It is important that, before Z starts sleeping at his father’s home, he has a room prepared for him and that Z is able to participate in the preparation and decoration of his room.
So that process can occur, the current orders will remain in place for the next two scheduled Sunday contact periods and overnight time will start on the scheduled contact weekend immediately thereafter.
HOLIDAYS
The father seeks to spend half of each school holiday period with Z.
The mother opposes overnight time in school holidays and proposes that Z spend one full day with the father in each school holiday period at the end of terms 1, 2 and 3 and two, non-consecutive days in each alternate week of the long Christmas holidays.
In her September 2020 report, the family consultant recommended:
7.It is recommended that consideration is given to [Z] spending holiday time with [the father], after overnight time during the school term has commenced, and that this time starts with a three to four day holiday, and culminates with half-holiday arrangements when [Z] reaches high school
The orders will provide that, until Z starts high school, he will spend three nights with the father in the first week of each of the school holidays at the ends of terms 1, 2 and 3, commencing on the first Saturday of the holiday period when the mother shall deliver Z to the home of the paternal grandparents.
In the long Christmas holidays, until Z starts high school, Z will spend four nights with the father commencing on 26 December 2022 and another four nights commencing on a date to be agreed in January the following year and, in the absence of agreement, that period will start on the second Saturday after 1 January in that year.
Once Z starts high school, he will spend one week of the short holidays and three weeks of the Christmas holidays with the father.
TELEPHONE CONTACT
The father seeks telephone contact with Z on the Fridays when he will not have contact with Z the following day.
The mother opposes all telephone contact except in the event that Z is ill and unable to attend for contact in which case she proposes that the telephone contact be supervised by Organisation A.
Telephone contact involving these parents has proven problematic in the past and is likely to lead to further allegations and the involvement of the police.
The orders will provide that Z, once he starts high school, can telephone his father as he wishes.
RESTRAINING ORDERS
The order made in 2019 by consent and without admissions restraining the father from entering the mother’s property, will remain in force.
Both parents seek non-denigration orders.
The father agrees to be bound by orders restraining him from having paying guests in his home on periods of contact and from allowing paying guests to use Z’s room.
The mother seeks a suite of orders in the following terms:
·Restraining the father from approaching within a 100 meter radius of her home.
·Restraining the father from communicating with Z through computer games or educational software on his computer.
·Restraining the father from using spy or tracking applications to monitor either her whereabouts or Z whereabouts.
I do not propose to make any of those orders.
In relation to the order sought in relation to the mother’s home, there is no evidence that the father has, since the commencement of unsupervised time on 1 May 2019, entered the mother’s property.
There is no evidence that, since 22 May 2019, the father has been on the footpath outside her property.
There is no reasonable basis upon which the father should be restrained from driving down a public street on his way to Z’s school.
As to the order restraining the father from communicating with Z through computer games and educational programs, nothing was put to the father in cross-examination about that issue.
The mother deposed:
222.[Z] was recently introduced to a math program called ‘Prodigy’ through his school. [Z] is able to have maths battles with his friends. [Z] showed the program to [the father] and [the father] paid for a subscription to the program without any consultation with me. [Z] has since said to me, “Dad messaged me while I was on Prodigy”…
The mother does not suggest that Z was in any way concerned about being messaged in this way and neither is it clear why such interaction between Z and his father is inappropriate.
There is no evidence that the father has ever used spy or tracking software to monitor either the mother or Z.
SPECIAL OCCASIONS
No submissions were made in relation to orders for special occasions and there is no reason why the proposal of one party should be preferable to another. With the exception of mother’s day and father’s day, no orders will be made in relation to special occasions. Special occasions will fall where they fall.
I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 11 May 2022
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