Yorke & Saunders
[2021] FamCA 426
•23 June 2021
FAMILY COURT OF AUSTRALIA
Yorke & Saunders [2021] FamCA 426
File number(s): PAC 5517 of 2018 Judgment of: HANNAM J Date of judgment: 23 June 2021 Catchwords: FAMILY LAW – PARENTING – Where parenting dispute relates to the time, if any, the children are to spend with the father – Where mother alleges that father poses an unacceptable risk of psychological harm to the children arising from his engagement in particular behaviours and his association with a community of people with similar proclivities – Where mother proposes that the children have no time with the father – Where ICL shares mother’s view that there is an identifiable risk of harm to the children’s psychological wellbeing arising from the father’s activities and associated lifestyle – Where ICL seeks orders that the mother hold sole parental responsibility for the children and that the children live with the mother and spend limited time with the father supervised by a private supervision agency – Where ICL also seeks various restraints on the parties and an order that the father engage in individual therapy to address his behaviour – Where father ultimately agreed with the ICL’s proposal that the mother hold sole parental responsibility for the children but pressed for an order that the children spend limited time with him initially supervised on four occasions, but thereafter unsupervised – Where Court is satisfied on the evidence that father is very enmeshed in his particular lifestyle and has strong connections to his minority community – Where Court attaches significant weight to expert’s unchallenged evidence that father’s lifestyle and involvement with the related community impacts his parenting capacity and is likely to cause psychological harm to the children in various ways – Where Court has great reservations and ultimately does not accept that the father has an authentic willingness or capacity to disavow engaging in the behaviours in question and in his connections to the community – Where in the circumstances it is in the children’s best interests to make orders largely in the terms sought by the mother. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC, 61B, 61C, 61DA, 65DAC Cases cited: G & C [2006] FamCA 994
Godfrey & Saunders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Gorman & Huffman & Anor [2016] Fam CAFC 174
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Moose & Moose [2008] Fam CAFC 108
Slater & Light [2013] Fam CAFC 4
Number of paragraphs: 210 Date of hearing: 18 - 19 November 2020 Place: Parramatta Counsel for the Applicant: Mr Battley Counsel for the Respondent: Ms Khalil Counsel for the Independent Children's Lawyer: Mr Blank Solicitor for the Applicant: Katsoolis & Co Solicitor for the Respondent: Khalil Family Lawyers Pty Ltd Solicitor for the Independent Children's Lawyer: Claremont Legal ORDERS
PAC 5517 of 2018 BETWEEN: MS YORKE
Applicant
AND: MR SAUNDERS
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
23 JUNE 2021
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The children X born … 2010 and Y born … 2014 (“the children”) are to live with the mother.
3.The mother is to have sole parental responsibility for the children.
4.The children are to spend no time and have no communication with the father.
5.The mother is restrained from permitting the children to be present with her brother Mr B except in her presence and under her supervision.
6.Each parent is to advise the other of any change in telephone contact details forthwith upon any change.
7.In the event that either of the children suffer a medical emergency or significant illness the mother shall advise the father via text message at first available opportunity of the following:
(a)The nature of the medical emergency;
(b)The Diagnosis received;
(c)The Prognosis;
(d)Treatment rendered.
8.The ICL shall make arrangements, including engaging a suitably qualified expert if necessary for the purposes of explaining the orders to 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yorke & Saunders has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
The parties ("the mother" and "the father") are engaged in a dispute relating to the future parenting of their two young children, a daughter aged 10 and a son aged six (“the children”) following the breakdown of their relationship of over 10 years. The central issue in this dispute is whether the father poses a risk to the children and if so whether that risk can be appropriately mitigated so that the children may share a meaningful relationship with him.
From around the time the parties separated in late 2017, the mother has become increasingly averse to making the children available to spend time with the father due to her concerns about his engagement in particular behaviours and his connections to a community of likeminded people[1].
[1] The father identifies as a member of a community which comprises individuals who derive sexual and other forms of pleasure and identity from certain behaviours (“the behaviour” or “the fetish behaviour”)
It is the mother’s case that due to the father’s engagement in this behaviour and association with the community of people with similar proclivities he poses an unacceptable risk of psychological harm to the children from which they need protection. She seeks final orders that she hold sole parental responsibility for the children and that they live with her and spend no time with the father.
The Independent Children’s Lawyer (“ICL”) shares the mother’s view that there is an identifiable risk of harm to the children’s psychological wellbeing arising from the father’s activities and associated lifestyle. It is the ICL’s proposal that the mother hold sole parental responsibility for the children and that she notify the father regarding any proposed decision about the children’s long-term care and welfare, that the children live with the mother and spend limited time with the father supervised by a private supervision agency. The ICL also seeks various restraints on the parties and an order that the father engage in individual therapy to address his behaviour.
Up until the final hearing, the father, with whom the children currently spend limited supervised time, denied that he posed a risk to the children arising from his behaviour and association with the community. At final hearing the father amended his position and indicated that he was prepared to undergo therapeutic treatment to address his behaviour and contended that any risk of harm to the children arising from his lifestyle choices may be mitigated by certain restraints made upon him. He ultimately agreed with the ICL’s proposal that the mother hold sole parental responsibility for the children but pressed for an order that the children spend limited time with him initially supervised on four occasions, but thereafter unsupervised. He also sought an order that the children have some telephone communication with him each week.
The question for me to determine is which of the proposed parenting arrangements is proper having regard to the children’s best interests as the paramount consideration.
BACKGROUND
The history of the parties’ relationship
The mother who is 41 was born overseas and came to Australia in 1991 as a child with her family. The father who is 39, was born and grew up in Australia.
There is no dispute between the parties that long before they commenced a relationship in around 2006, the father had for some time engaged in the behaviours practised by members of the community with which he later came to identify. The parties also agree that at the beginning of their relationship the father disclosed to the mother some of the behaviours which he engaged in which the mother initially did not find problematic.
In 2007 the parties began living together. Around this time, the mother deposes being aware of the father engaging in certain behaviour[2] for the purpose of sexual arousal, but the father denies that this was a feature of their intimate life. The mother describes feeling disturbed and insecure about this conduct and suggesting that the father consult a counsellor but he refused to do so. At about the same time, the father informed the mother of the existence of the community of individuals who engaged in similar behaviour.
[2] Especially wearing certain garments.
In 2009 the parties moved into rented premises and lived there together with members of the maternal family. Although the father continued to engage in the same behaviour during this time, he says he was very discrete about these matters.
In 2010, the parties’ daughter (“the daughter”) was born. In the following year, the parties and this child moved into a new home where they lived as a family without any other people.
The parties’ son (“the son”) was born in 2014.
As the children grew older, the mother’s concerns regarding the father’s practices and lifestyle intensified. He began regularly wearing certain garments around the home and she became fearful that the children may become aware of this conduct. She deposes that she remained living in the same household as the father due to her desire for the family to be a “single unit”. Although the mother raised her concerns with the father on numerous occasions, the father was critical of the mother having difficulties in accepting his behaviour as normal.
In October 2015 the father attended upon his local doctor for advice as to his proclivities and was referred to a psychologist with whom he began counselling sessions.
Sometime in 2016, the mother joined the father in attending counselling sessions with this psychologist in an attempt to rebuild their relationship. At the time, the father engaged in certain practices on a more frequent basis. As a result of the parties’ disparate views about the father’s conduct, the tension in the household grew.
The mother continued to struggle with accepting the father’s practices which he had come to regard as a minority identity, and consulted Ms A, a psychologist. This psychologist was of the opinion that the father’s behaviours fall within the definition of a paraphilia[3]. The father challenged Ms A’s assessment of his conduct and later lodged a complaint against Ms A, alleging she lacked professionalism.
[3] As defined by the expert appointed in the proceedings at [154] of her report dated 15 January 2020: A paraphilia is a term used to denote any intense and persistent sexual interest to atypical objects, situations, fantasies, behaviours or individuals.
In about 2017, the father began consulting a sex therapist from the United States who claims to be a “world expert” on the subject of the behaviour and the community with which the father identifies (“the father’s therapist”). This therapist approached her dealings with the father on the basis that his conduct is not paraphilic but should rather be accepted by the father and society at large.
In the months leading to separation, the strain between the parties intensified due to the father’s interest and commitment to the lifestyle he regarded as an expression of his minority identity and the related community of people with whom he associated.
In September 2017 the parties separated and the father moved out of the family home. Around this time, the daughter was diagnosed with anxiety and emotional difficulties characterised by skin picking and tics.
Following separation, the children initially spent time with the father on a somewhat regular basis including overnight time on some weekends. By late 2017 the mother had become very reluctant to facilitate this time and the parental relationship began to significantly deteriorate.
After separation, the maternal grandfather who had for some time played a role in the care of the children began to assist the mother more in meeting the children’s needs when she went to work and was an important presence in the children’s lives.
Shortly after separation in September 2017 the father opened an online business which sells products used by the community of his minority identity (“the father’s business”).
In April 2018 the parties attended mediation but could not reach agreement as to the future parenting arrangements for the children, or as to financial matters between them. For the next few months the children’s time with their father gradually ceased, though they maintained some electronic communication with him.
The mother through her solicitor sent a letter to the father in July 2018 raising concerns about his conduct which she advised had been described by an experienced psychologist as a “paraphilia” and also raised concerns about the children’s psychological state. In that letter it was suggested that boundaries be implemented in the father’s household to limit the children’s exposure to his behaviour, activities associated with his business and others associated with it. She also expressed the view in this letter, based on the psychologist’s advice that the father should engage in treatment for his paraphilia. In summary, the mother outlined proposals to resolve the dispute between the parties (including a property settlement) through consent orders and informed the father that she was not willing to make the children available to him unless he refrained from the behaviours of concern and agreed to the various restraints proposed.
In a letter in response dated 10 August 2018, the father’s solicitor denied that the father had a paraphilia or that he posed a risk of psychological harm to the children or actively exposed the children to his lifestyle. The father’s lawyer also raised concerns about the mother painting the father in a negative light to the children and urged that his time with the children be restored. The father was then generally agreeable to a property settlement, but in relation to parenting insisted that the mother allow the children to spend substantial and significant time with him.
The parties were unable to resolve their dispute concerning both parenting or property matters and the mother commenced proceedings in November 2018, seeking orders in relation to a property settlement only.
In his Response filed in December 2018 the father sought orders for an arrangement in relation to parenting that would see the parties hold equal shared parental responsibility for the children, the children live with the mother and spend defined time with him at such times to be arranged according to his work roster.
In December 2018 the parties were able to reach agreement in relation to property matters and orders were made with their consent resolving that dispute. Directions were also made for the family to attend upon a Family Consultant for the purposes of the Child Responsive Program and interim parenting orders were made with their consent that they equally share parental responsibility for the children and that the children live with the mother and spend time with the father for a few hours each Sunday and one weekday per week. Orders were also made by consent restraining the father from exposing the children to photography, websites and activities associated with his behaviour or the community with which he identified.
Between mid-January and early February 2019 the Department of Family and community Services (as that Department was formerly known) (“the Department”) received a number of risk of harm reports including in relation to sexual abuse in the mother’s household, and physical abuse by the mother. It was alleged that the children were displaying sexualised behaviours and that they had contact with the maternal grandfather and maternal uncle who both posed a risk of sexual harm to them. Only one such report was followed up but this was subsequently closed as information gathered by Departmental caseworkers did not support the allegations.
On 8 February 2019, the mother filed her Reply to the father’s Response and sought orders in summary that she hold sole parental responsibility for the children and that the parenting arrangement under the 2018 orders continue as a final arrangement. In a Notice of Risk filed in support of her application, the mother repeated her concerns about the father’s behaviours and harm that may be occasioned to the children should they be exposed to them.
A few days later the father filed a Notice of Risk alleging a risk of sexual abuse posed by the maternal grandfather based on disclosures said to have been made by the son then aged five. Following these allegations, the maternal grandmother (who had long been divorced from the maternal grandfather) began assisting in the care of the children and the mother did not leave the children in the maternal grandfather’s unsupervised care even though she did not accept that the maternal grandfather posed any risk to the children.
By March 2019 the father had re-partnered with a woman who engaged in similar behaviours as the father and together they interacted with the community with which they identified.
The family met with a family consultant in March 2019 for the purposes of the Child Responsive Program. The main issues raised in the assessment related to the father’s behaviours, and to a lesser extent the alleged risk posed by the maternal grandfather. It was the family consultant’s recommendation that a single expert forensic psychologist be appointed to assist the Court.
Two other reports were made to the Department alleging significant risks of sexual abuse but these did not proceed to further assessment. According to the Magellan report[4] dated 27 March 2019, following interviews with the father, the mother and the maternal grandfather, and after meeting with the children including at the family home throughout March 2019, the Department concluded that:
There were no disclosures made by [the children], nor suspicious indicators found, to substantiate that the children have been sexually abused by the maternal grandfather…or any other adults in the family.
[4] A Magellan Report sets out the involvement of the Department with the family.
As part of their investigation, the Department also considered reports of physical abuse allegedly perpetrated by the mother, the children’s exposure to domestic violence and an alleged risk of psychological harm to the children posed by the father. In the Magellan Report it is recorded that the mother’s use of physical discipline was not assessed as meeting the threshold to conclude that the children are at a significant risk of physical abuse. The main matter of concern was the parents’ dysfunctional and toxic relationship to which the children were exposed especially as it was apparent that the parents were unable to explain their separation to the children appropriately and had not been able to prioritise the children’s needs above their own conflict. It was recommended that the parents attend a post separation parenting course to assist them to refocus on understanding the children’s needs and learn strategies to develop child-focused ways of negotiating with the other parent.
On 15 April 2019 interim orders were made with the consent of the parties (“the 2019 orders”) providing in summary that they hold equal shared parental responsibility for the children, that the children live with the mother and spend time with the father supervised by a private supervision agency for three hours each Saturday and have regular electronic communication with him. An order was also made by consent restraining the father from exposing the children, or allowing their access to the website associated with his business, his activities or any photography associated with his involvement with the lifestyle that he regarded as part of his minority identity. The parties also agreed on the appointment of single expert to report on matters relating to the children’s welfare.
On one occasion in July 2019 the mother deposes that the father arrived to pick up the children wearing a garment under his clothing associated with his minority identity[5] which was partially exposed. Otherwise, it appears the children spent time with their father in accordance with the 2019 orders without significant incident.
[5] An adult sized “onesie”.
At some stage which is unclear, the father formed a new relationship with a woman (“the father’s partner”) who is aware of his practices.
In early January 2020 the father terminated the service which were supervising his time with the children. Shortly after, the mother agreed to facilitate the children spending time with the father at a local park and in her presence and on some occasions the father’s partner has also been present.
In January 2020, the expert’s report was released to the parties. The expert’s observations and findings are discussed at length later in these Reasons, though it suffices to say at this stage that the expert opined that exposure to the father’s behaviour would have a deleterious and significant impact on the children. The expert also recommended that if the father accepts the conduct associated with his minority lifestyle is a risk to the children then it would be appropriate for him to also accept “behavioural modification and treatment from a psychiatrist or clinical psychological with a specialisation in treating paraphilic and sexual disorders”.
In an Application in a Case filed in February 2020 the father sought to have the expert’s evidence excluded from the proceedings and that a new expert be appointed. He also sought permission to provide the expert’s report to the Psychology Board of Australia and forensic psychologist for review. These applications were dismissed at a court event for reasons given at the time.
In March 2020 the father attended an international event in the United States organised by the community against the background of the COVID-19 pandemic when that country was particularly adversely affected by the pandemic.
The children last spend time with their father in late October 2020, a couple of weeks before the final hearing. By that stage the mother was no longer willing to supervise that time and no other arrangements had been put in place for supervision.
The final hearing
The final hearing took place across two days in November 2020. By this time, the children were not spending time with the father in accordance with the 2019 orders.
On the first day of hearing the mother was cross-examined. Her proposal according to her Outline of Case was that she hold sole parental responsibility for the children. She also sought that the children live with her and spend no time with the father, maintaining that the children were at risk in his care arising from his behaviours and identity and associations with likeminded people. It appeared however that the mother may consider the children spending supervised time with the father in the event that the Court were to find that he poses an unacceptable risk of harm to the children.
When the matter resumed the next day both the father and the expert were cross-examined. Under cross-examination the father oscillated back and forth between acknowledging some abnormality with his minority identity and insisting that his lifestyle was “normal”. His final position was that he was willing to engage in therapy to try and change his behaviour.
When cross-examined, the expert gave evidence fairly consistent with her views expressed in her Report (which is considered shortly) and maintained that the “core issue” was not about what the father may or may not do, but rather the impact of his behaviours on his role as a parent.
The ICL’s final proposal is that the mother hold sole parental responsibility for the children and notify the father of any proposed decision regarding their long term care and welfare. The ICL also proposes that the children live with the mother, spend time with the father supervised by a private supervision agency once a month and that the parties be subject to various restraints including in the case of the father not engaging in or exposing the children to his behaviour when in his care. The ICL also seeks an order that the father engage in therapy of a period of not less than 12 months to address his paraphilic disorder. Counsel for the ICL clarified that unless the Court were minded to make an order that the father receive such therapy, the children should have no time with him.
While the mother agrees with the ICL’s proposal that she hold sole responsibility for the children with notification to the father, she presses for an order that the children have no time with him. The mother also does not seek an order that the father engage in therapy as it was her position that the father’s capitulation under cross-examination that he needed such therapy, does not represent his true position and that the onus should be on him to seek such therapy if he wants to re-engage with his family.
In final submissions it became apparent that the father agrees to many of the ICL’s proposed orders. In particular he agrees that it was in the best interests of the children for the mother to have sole parental responsibility for them but seeks an order that the mother not only inform him about major long term decisions but that she be required to take into account his views with respect to those decisions. So far as the children’s time with him is concerned, he agrees with the ICL’s proposal that only occur once per month. While the father proposes that the first four occasions of the children’s time with him be supervised (and be of four hours duration), it is his proposal that the children’s monthly time with him thereafter take place without supervision.
At the conclusion of the hearing, the parties agreed on orders pending final judgment providing that the children spend the last Saturday of each month with the father and that this time be supervised by a professional supervision agency with which the family have not been previously engaged. Orders were also made with the parties’ consent directing the father to remove from all digital or electronic platforms any association or connection between his name and his business and any organisation or body that promotes his minority lifestyle and community.
Before judgment was reserved, the ICL also sought that the parties pay the ICL’s costs. With the consent of the mother and the father an order was then made that the parties pay the ICL’s costs in equal portions.
THE MATTERS IN DISPUTE
In their respective affidavits the parties depose to alternate versions of many factual matters. For example, there is a dispute between the parties about the extent to which the father engaged in certain behaviour throughout the relationship and the extent to which those behaviours were connected with the parties’ intimate sexual life or were engaged in for other reasons. Factual disputes of this nature in my view do not require resolution because the relevant issue is not so much whether the conduct in which the father was engaged is associated with sexual intimacy or for the purposes of comfort, but the father’s attitude towards that conduct and the children’s likely exposure to that conduct. The other matter of great significance in these proceedings is an assessment of the level of disruption and impairment to the father’s role and capacity as a parent arising from his behaviours and connection to the community.
So far as the more relevant matters are concerned, there were either some significant factual disputes between the parties or an absence of any relevant evidence in their respective affidavits. However, under cross-examination of each of the parties’ disputes as to these matters fell away as clear uncontested evidence was adduced or concessions were made as explained in the following discussion.
The children’s likely exposure to the father’s behaviour and identity
Central to the expert’s opinion that the father is likely to pose a risk of psychological harm to the children is the question of the children’s likely exposure to the father’s behaviour and identity. Although the parties depose in their respective affidavits to differing versions about the extent to which the children have been exposed to the father’s behaviour (including his business activities), these matters were largely resolved in the course of the final hearing by concessions made by the father under cross-examination or other evidence adduced in the proceedings.
When cross-examined about his “regressive behaviours” the father initially denied wearing certain garments under his usual clothing every day but then agreed that he wore such clothing and certain garments to bed every night and wore these items under his day clothes “maybe once a week”. Although he denied that he wears certain garments as part of his lifestyle, he maintained, consistent with his affidavit that he wears certain garments to bed to manage a medical condition. He agreed however that he had provided no medical evidence of a medical condition or any medical need to wear certain garments but maintained that he used them as “a medical aid”.
Under cross-examination the father also agreed that he used stuffed toys and comforters and other similar items to participate in regressive play where another adult person provides adult-style care giving to him. He said he engaged in such conduct at irregular intervals which he then nominated to be about once every two months. Later the father said that he engaged in regressive behaviour such as using stuffed animals or comforters about twice a week and also engaged in wearing a certain garment under his clothes when out in public “maybe twice a week”.
Further under cross-examination the father denied that the children had been exposed to his regressive behaviours though conceded that there was one occasion where both of the children were aware that he was wearing a certain garment which had been explained to them was because he suffered from haemorrhoids.
At another stage under cross-examination when the father was asked about various activities he had engaged in within the community he agreed that one such activity is “[a type of fetishism]” which he had engaged in in the past but did not currently engage in.
When asked what he says to the expert’s assessment that “you now consider these behaviours and desires to be fixed, unchangeable aspects of your personhood” the father answered “it has been a part of me all my life”.
The children’s likely exposure to the father’s business
Another matter central to the expert’s opinion that the father is likely to pose a risk of psychological harm to the children relates to the children’s likely exposure to the father’s business and business activities.
In the course of the proceedings the father was requested to adduce evidence about his online presence, in particular in relation to his business, as his affidavit was silent as to this matter. Various documents were produced (having been printed from social media platforms and the like) in relation to the father’s business. It became apparent that various other online platforms have been utilised for the purposes of the father’s business in the past but had been “deleted” or disconnected in some way prior to the hearing. Documents previously produced from material on those platforms when they were extant formed the basis of some cross-examination as to these matters.
It was revealed from the documents produced as directed that when an internet search is undertaken of the father’s name the first result is an extract from an Australian Business Register site for the father’s business[6] which indicates that the father is the holder of that business name. Once the business name is known a search of that name on the internet easily takes the searcher to the website of the father’s business and to a social media platform.
[6] The father’s business is known as B Company.
The father was cross-examined about the social media platform for which his business holds an account and a print out of the “landing page” for that account. He was also asked about printouts from the homepage and various other pages of the website of his business.
In relation to this last mentioned matter, the father was asked about links from the website to various other sites. One such linked site features an article about the type of desires and behaviours engaged in by the father and the community of similar individuals in which it is contended that such desires and behaviours are arguably not paraphilic.
In relation to his business the father also agreed that he told the expert that it had a turnover of $100,000 and said since the time of the assessment the turnover had increased. While he agreed that the business is “quite a substantial enterprise”, he denied that his business supplied “play equipment for sexual play”. When asked whether he provided anything that related to “incest fantasies” or “slave baby” he replied “definitely not”.
So far as the children’s understanding of his business is concerned, the father agreed that he had exposed the children to it to some extent including having the daughter pack some of the online orders.
When asked further about his business the father agreed that he had an online presence on other social media platforms when assessed by the expert, details of which had not been revealed in the proceedings but said he had closed some of these accounts. He was asked about various images which I understand to be extracted from these closed social media accounts including a picture of a female reclining on her back with her legs in the air exposing her genital area covered by a certain garment and agreed that that was an entirely inappropriate picture for children of his children’s age to see. He was shown other images from that website and agreed that it was entirely inappropriate for the children to see any pictures of an adult wearing a certain garment, using paraphernalia or wearing certain clothing. He confirmed that these images came from one of his social media platforms and the website for his business and that anyone who had access to the internet could access this material. When asked how he proposed to protect his children from coming across this material on his website the father said that he would deactivate the social media account.
The father’s attitude towards his paraphilic conduct
According to the uncontested evidence of the expert, another critical issue so far as any risk to the children is concerned, relates to the father’s attitude towards his conduct especially as his presentation to her was that the conduct forms part of his identity and as she opined that his understanding of himself is based upon self-acceptance.
The question of the father’s attitude to his behaviours was clarified by the admission into evidence of a report from the father’s therapist. At the commencement of the final hearing the father sought to rely on a report from his therapist based in the United States as an adversarial expert in an effort, as I understand it to challenge the opinion of the expert appointed in the proceedings. Although he was not permitted to rely on the opinion of his therapist as an adversarial expert that report was admitted and the father gave evidence that he had been receiving treatment from this therapist for three years by way of video link. He said that he spoke with this therapist at regular intervals once every three to four months.
The therapist’s report was useful for the purposes of gaining an understanding of the lens through which the therapist’s “treatment” is provided. In her report the therapist refers to herself as “one of the few therapists in the mental health community with the education and experience to be considered one of the world experts on the subject”. It is the opinion of the father’s therapist that the father has a fetish but she does not consider he can be diagnosed with a Fetishistic Disorder as he does not meet one of the criteria under the DSM-5[7], being “clinically significant personal distress or psychosocial role impairment”. It is the opinion of the father’s therapist that the father does not meet this criteria since he is “accepting of his fetish and is able to function at home and within his family life”.
[7] The Diagnostic and Statistical Manual of Mental Disorders – Version 5 (DSM-5).
The father’s attitude towards his behaviours and connection to the community had appeared to be a matter about which there was little dispute when regard was had to the parties’ respective affidavits and the opinion of the expert. However, his attitude to these matters became complicated and unclear as a result of answers given under cross-examination.
When cross-examined the father first agreed that in his affidavit he challenges the expert’s opinion that his behaviour constitutes a paraphilia. His challenge to this diagnosis was revealed under cross-examination to be based upon the fact that neither his therapist nor two other general practitioners he had consulted had diagnosed a paraphilia.
Under cross-examination the father also said that he did not agree with the expert’s definition that the community of which he is a member “comprises individuals who derive sexual and other forms of pleasure and identity from certain behaviours, including wearing certain garments, using paraphernalia and seeking care giving” but was unable to offer an alternative definition even though he confirmed that he is a member of the community in question. The father also obfuscated and was evasive when questioned about the way he viewed his desires and behaviours but did ultimately agree that the desires he had experienced since the age of three did amount to a “minority identity”.
In my view, the father’s answers when questioned about his attitude and views towards his desires and conduct was extremely confusing and contradictory. He vacillated on numerous occasions between expressing the belief that his desires and conduct were “abnormal” adding at times that he had “always believed that”, and the view he had expressed in various settings that he does not consider his desires or activities to be ‘abnormal’. The father was unable to explain adequately his presentation to the expert that he “does not consider his desires or activities to be in anyway abnormal” and that these behaviours should be accepted by others as part of normal human identity variation and statements under cross-examination to the effect that he had always considered these matters abnormal. At times the father appeared to suggest that the expert erred when she opined that “his social and psychological understanding of himself is rooted in self-acceptance”. At other times he vacillated and confirmed that he had likened his proclivity to homosexuality and considered that individuals such as himself and the community to which he belongs have been discriminated against in a similar way to homosexuals.
At one stage in his cross-examination when the father appeared to accept the position that his behaviour is “abnormal” he also agreed that it could psychologically damage his children if revealed. Curiously he also maintained that the purpose of seeking assistance from his therapist was to modify his abnormal behaviour notwithstanding that the entire tenor of the therapist’s report is to the contrary. At times the father appeared to understand the contradictory nature of his evidence and returned to his original position that the behaviours and desires in question are part of his identity and should be normalised and accepted as normal within the general community. There were further about-turns and qualifications in answers given under cross-examination concerning his view of his conduct including statements to the effect that there was nothing to prevent him from severing any ties with the community of similar individuals but that he did not intend to do so due to financial considerations of running his business, supplying products to the community.
Ultimately at the end of the cross-examination the father seemed to come down on the side of knowing since the age of three that his behaviours are abnormal and accepting that these behaviours pose a risk to the children. He said that notwithstanding his therapist’s views of the unethical nature of “conversion therapy” that he would be prepared to engage in therapy to change his behaviour. When asked when he had made a decision to undertake such treatment the father said that this had happened towards the start of the year but he had taken no steps to seek out assistance to engage in this therapy.
The strength of the father’s social connection to his minority community
Another relevant matter to the question of risk according to the expert is the strength of the father’s social connection to his minority community which itself promotes self-acceptance and normalisation of his desires and behaviours. This connection in the unchallenged opinion of the expert has caused the father to have a “skewed” view of how others outside the community regard these behaviours and his “false notion” of broad community acceptance of such desires and behaviours.
Under cross-examination the father conceded that he had a strong social connection with the community and that this is facilitated in part by his company which supplies products to that community.
When asked about whether he would continue with his business even if he were to engage in treatment given his explanation about “financial reasons” the father agreed that the business also maintains his connection to the community. He then explained that his business was not profitable but he continued to run it at a loss for taxation purposes. He then conceded that he was willing to incur financial losses because the business maintains his ties within the community and ultimately agreed that his ties with the community were not solely commercial.
Under cross-examination the father was also asked about the conference that he had attended in the Unites States in March 2020. He gave evidence that at that event he engaged with his business suppliers, built a relationship with those suppliers and also attended seminars in the course of the three day conference. He said that one and half thousand people from all over the world attended notwithstanding the seriousness of the COVID-19 crisis at that time in the U.S. He also said that there had been another conference planned for Australia in 2020 which did not go ahead due to COVID-19, but agreed that he had been a sponsor for the Australian event which, like the US conference, was also to include social activities for the participants.
The father was particularly evasive when asked about the observation of the expert that the community with which he has a strong social connection “promotes self-acceptance and normalisation of those desires and behaviours”. Although questions in relation to this matter were asked in various ways the father persistently said that he “can’t comment on the Community” and was unable to agree or disagree with the proposition that the community “promotes self-acceptance and normalisation of the desires and behaviours”.
In summary, notwithstanding the various inconsistencies, it was ultimately not in dispute following cross-examination that:
·The father considers that his desires and behaviours have been part of his personhood throughout virtually the whole of his life and that while he did not believe he could change those matters when interviewed by the expert (in November 2019) he has been prepared since about a month or so later to undertake such a change.
·The father has taken no steps to obtain assistance to undertake change in relation to his behaviours and lifestyle.
·The father as at the date of final hearing was still regularly engaging in the regressive behaviours in question though he maintains that these behaviours are currently associated with seeking comfort rather than being connected with sexual intimacy.
·The therapist with whom the father has been engaged for three years up until the time of final hearing and who he was seeking at final hearing to be treated as an adversarial expert approaches the father’s desires and activities as non-problematic and considers that they should be seen as such by the father and the community at large.
·The father’s connection with the community of likeminded individuals extends to attending international conferences (including to the US during the COVID-19 pandemic) and selling products to the community through an online business which he maintains is non-profitable.
·The father engages in mentoring others in the community through his online business and despite its non-profitability he intends to continue to engage in the business as it maintains his connection to the community.
·As at the date of final hearing details of the father’s business and the products he sells were easily able to be ascertained through a simple online search including through a search of his name.
·The children on at least one occasion were aware that the father wore a certain garment under his clothing prior to separation and may have been exposed to him wearing an adult-sized garment known as a “onesie” under his clothing when they were spending time with him following separation.
·The children have each been exposed to the father’s business and the products he sells. The daughter has assisted the father in packing some of his products and was given a t-shirt bearing the same print as one of the adult “onesies” supplied by the father’s business. The son attended with the father at an appointment with a customer.
There were also other factual disputes between the parties that do not require resolution as these matters fell away given the way in which the parties’ cases were run. For example, the father deposes to the mother ridiculing him and causing harm to the children through her refusal to accept his conduct as normal and part of his identity. There was also evidence that appeared to relate to alleged shortcomings in the mother’s parenting capacity, such as accounts of various events especially in the few months following separation and in particular an allegation of an alleged assault through excessive discipline against the mother in April 2018. There was further evidence about risk to the children in the mother’s household said to have been posed by the maternal grandfather and which grounded complaints to the Department which the mother always contended was unfounded.
In these proceedings where the expert was not concerned about risk in the mother’s care or lack of capacity on her part and the father had agreed at the end of the hearing to orders providing for the mother to have sole parental responsibility for the children and that they live with her it was not necessary to resolve any of these factual disputes.
For the foregoing reasons there were ultimately very few factual disputes about relevant matters that required resolution and the evidence to which particular weight must be attached is the opinion of the expert.
EXPERT EVIDENCE
2020 Report
When assessed by the expert in November 2019, the daughter and son were nine and five years old respectively. They were then spending weekly time with their father supervised by a private supervision agency in accordance with the 2019 interim orders.
For the purposes of her assessment, the expert conducted a series of interviews with the family and observations of the children with each of the parents. The expert also reviewed various court documents filed in the proceedings and also had available to her a number of documents produced on subpoena. The expert identified that the “central issue” is whether or not the father poses any risk to the children.
The mother maintained on interview that the father is a risk to the children due to his engagement in fetish behaviours which she asserts the children have observed. While the father acknowledged that these behaviours form part of his minority identity, he insisted that his behaviours do not pose a risk to the children in any way.
After exploring the father’s family background, education and employment, physical and mental health and other aspects of his lifestyle, the expert asked the father about his psychosexual history and in particular, what the father described throughout his interview as his “minority identity”.
The father told the expert that his desire to engage in these behaviours began very early on in his childhood and explained that he was initially embarrassed and ashamed about it. He said that the behaviours did occur in the context of his sexual relationship[8] but claimed that because of the stress with the court proceedings there is no longer a sexual element to his behaviours and that he currently engaged in the behaviours predominantly “for comfort”.
[8] The father told the expert of his early fantasies.
The father went on to describe the history of these proclivities, reporting that early on in the parties’ relationship when the mother was initially “accepting” of his behaviours, his desires increasingly progressed to the extent that it became a lifestyle. When the daughter was born, he described that his behaviour did not change, though he said he was at that point not “self-accepting”. As his behaviours became a constant topic of argument between he and the mother, and because the mother increasingly “shamed him”, the father says he was more drawn towards self-acceptance. He later explained that there were other behaviours engaged in by others such as smoking cigarettes, which were “more damaging” than those to which he is drawn, and confirmed that he now embraces this aspect of his personhood.
The father then recounted an incident in which the daughter had noticed him engage in his fetish behaviour[9] and explained that he had made up some medical reason when this child had questioned him about it. The father went on to say that he attempts to be discrete about his behaviour in line with his view that he “should not have to expose his behaviour to people who are not consenting”.
[9] The daughter saw he was wearing a certain garment under his clothing.
Later in his interview the father expressed concerns that the mother mistakenly linked his behaviour to paedophilia which he asserted had never been the case. While he told the expert that members of his family, friends, colleagues and his current partner are “completely supportive of him”, he complained that the mother or perhaps others “have turned his behaviour and desires into suggesting that he is an unfit father”.
The father told also the expert that in addition to his participation in his fetish practices he has a “strong desire to be cared for”. He later added that some of his practices that involve the use of objects such as soft toys are a form of “self-soothing” for him. The father went on to deny that he exposed the children to his behaviours and told the expert that it was the mother who told the children directly about it. He expressed the view that the daughter accepts his behaviour more than the mother and that the mother was unreasonable in seeking to pathologise what was “normal behaviour”.
The expert also asked the father about what he thought the effects on the children would be if or when their knowledge of his minority identity (including his associated business) increased, and how he felt the children may come to understand him. The expert reported that:
[The father] said that his minority identity has been “made a big deal of but I don’t think it is a big deal”. [The father] said “they [the children] would never be exposed to it. I would never engage in regression stuff around them”. [The father] pointed out that some members of [the community] are unable to live outside the realms of their regressed identity, but he is able to compartmentalise things.
…
[The father] indicated that he thinks when the children are older they will be very tolerant to his minority identity and accept him. [The father] said “I have such a strong bond with my children that I think they will love me for what I am and who I am in their lives”. [The father] said that one of [the mother]’s friends is a psychologist who has told him that the children will “work out for themselves what they want to do and they will make up their own minds”.
Although the father acknowledged that he had attended upon several psychologists and psychiatrists in the past, the expert later noted that the father ultimately expressed the view that he does not need psychiatric treatment. The expert reported that the father was adamant that he has been “judged inappropriately” including by the maternal family who have used his minority identity as a way to link his behaviours with paedophilic risk. At the conclusion of his interview, the father insisted that he has very positive relationships with both children, that he is not in any way a risk to them and that they deserve to have an ongoing loving relationship with him.
The expert also assessed the mother’s family, education and employment history, physical and mental health and other circumstances of her life including her relationship with the father.
In relation to the parental relationship, the mother told the expert that although there were positive aspects, as the relationship progressed the father’s fetish behaviours became “more difficult and more widespread”. She explained that she first became aware of the father’s fetish in their sexually intimate relationship, and said that the father made a request to incorporate these practices as part of their intimate life. Although her initial impression was that it was “a kinky thing” and she too, to some extent, involved herself in his lifestyle early on in their relationship, she increasingly became concerned about the potential link to paedophilia. She said she also became concerned after finding a book in the father’s drawer which contained sexual stories and adult roleplaying and that her concerns only escalated when she gave birth to the children. She reported that she had always urged the father to seek help which he refused to do. She added that she was always stressed working and looking after the children due the father’s behaviours and that she lived with “shame and embarrassment” for 12 years.
When explaining her parenting concerns to the expert, the mother again returned to her fears about the children’s potential exposure to the father’s fetish behaviour. She reported that she was adamant with the father that the children “cannot grow up in an environment where this behaviour was normalised”. The mother repeated the incident in which the daughter had become aware of the father’s practice of wearing a certain garment under his clothing which was consistent with the father’s account. The expert opined that it is difficult to know what this child would have made of this at the time, but it was the expert’s view that over time the child’s awareness of the father’s identity, behaviours and business identity will come to have an impact on the nature of her relationship with him and her feelings towards him, although the expert stated she could not entirely predict what these will be.
The mother further explained that her concerns grew as the father became more ensconced in what she termed the “self-acceptance movement” whereby he was actively promoting his involvement with the minority community and was committed to participating in activities within that community even on an international level. She went on to describe various instances where the children were exposed to certain objects associated with the father’s minority lifestyle[10] and reported that while she “tried to compromise and negotiate” with the father, she became more concerned after the children returned from the father’s care reporting concerning behaviour to her. She recounted various occasions where the daughter described the father’s practices including her awareness of the father’s online business. The mother also recounted a time when the father brought the son to a meeting with one of his customers.
[10] The mother told the expert the daughter was aware of the father’s website, had helped her father package up clothing and had seen other paraphernalia.
Further in her interview the mother told the expert that she was in a “real dilemma” because the children love their father, and insisted that all she simply wants is the father to stop engaging in his fetish behaviours and attempting to normalise them. While she acknowledged the father had loving relationships with each of the children, the mother ultimately expressed the view that it is not sustainable for the children to have supervised visits on an ongoing basis.
In her evaluation, the expert opined that the father’s behaviour “can be considered a paraphilia which has now developed to the point of becoming part of his identity formation”. She explained that it is her view that the father considers his behaviours and desires to be “fixed, unchangeable aspects of his personhood” and that his social and psychological understanding of himself is rooted in “self-acceptance”. She noted that the father has a “strong social connection” to his minority community which itself promotes self-acceptance and normalisation of his desires and behaviours.
The expert went on to opine that the father has a rather “skewed view” of how others outside this community view and regard these behaviours and has a “false notion” of broad community acceptance of such desires and behaviours. She stated:
In my view this has a direct relevance to parenting. It is my view that the father deeply believes that his behaviours are normal and should be accepted by others, including the children.
From a diagnostic and clinical perspective the father’s behaviours are considered paraphilic behaviours. A paraphilia is a term used to denote any intense and persistent sexual interest to atypical objects, situations, fantasies, behaviours or individuals. A paraphilia by itself does not necessarily justify or require clinical intervention. There is a great deal of controversy concerning paraphilia, and defining what is normal versus deviant or disordered, given that this is to some degree dependent on cultural views of acceptability.
Although the expert did not assess the father as an individual with an acute psychological disorder, she noted that the father’s desires and behaviours “caused the deterioration in the relationship with the mother and are causing significant disruption and impairment to his role and capacity as a parent”. In this regard, the expert opined that such behaviours have had a “significant interruption” to the father’s functioning.
Later in her report the expert dedicated significant discussion to the central issue of whether or not the father’s behaviour (which the expert describes interchangeably with the word “paraphilia”) poses any risk to the children. In summary is was the expert’s opinion that this behaviour is “likely to pose a risk of psychological harm to the children”.
The expert clarified that she did not consider there to be a risk that the father would “directly” involve the children in his paraphilia or sexual or regressive behaviour, or that the children would be exposed to “direct sexual harm from the father”. Rather, it was the expert’s opinion that the children are at “other forms of psychological risk because of their likely exposure to the father’s behaviour, identity and business”. The expert again discussed her concerns about the father’s naivety as to the degree to which behaviours have broad community acceptance, and his own attitudes of self-acceptance and attempting to normalise his behaviours. In the event that the father’s behaviours are made public (which the expert considered “likely to happen” due to his increasing links to and business in the minority community), the children are likely to be exposed to “humiliation, ridicule and enormous psychological difficulties”.
In considering the question of the father’s willingness or capacity to change I also attach weight to the expert’s oral evidence when informed of the father’s contradictory answers under cross-examination that she is much more convinced that the father would not be able to engage successfully in any change therapy.
Another issue of some significance is that to date and particularly over the last three years the father has been engaged with a therapist who maintains that if the father were to engage in any form of mental health counselling with a view to causing him to change or cease the behaviours in question in the privacy of his own home, this would be “unethically, contra-indicated and actually harmful to his psychological-wellbeing” and akin to “conversion therapy for gay/lesbian/bisexual individuals which the psychological community has found to be psychologically harmful and is now unethical and often illegal for licenced mental health practitioners to engage in”[16].
[16] Extracts from the report of the father’s therapist, Exhibit 8.
It is to be remembered in this regard that the expert had not recommended that the father engage in any therapy to change his behaviour unless he accepts that his paraphilic behaviour and associated identity is a risk to the children, a matter which the father had not accepted right up until final hearing. It is also to be remembered that this recommendation to engage in therapy of this nature had been made in January 2020 when the expert’s report was released, ten months prior to the final hearing. Although the father claimed to have a recognition that such therapy was required at around the same time, he had taken no steps to engage in it.
For the foregoing reasons, I am satisfied that the father does not have a genuine willingness or capacity to engage in the type of therapy recommended by the expert nor does he genuinely agree that his behaviour and associated identity poses a risk to the children. In these circumstances there is little utility in making an order that he engage in such treatment, notwithstanding his agreement to such an order. Further, his engagement in such therapy, if ordered, may be psychologically harmful to him.
I also agree with the contention of the mother that, if and when the father does authentically reach an understanding that his desires and behaviours pose a risk of harm to the children and he voluntarily engages with appropriate treatment at this time, then that may be a platform upon which he may seek to have the parenting arrangement revisited.
Although the expert had outlined some of the psychological risks to the children arising from exposure to members of the father’s community (which the expert considered likely), she ultimately opined that it was “impossible” to predict the likely degree of risk to the children in this regard. The expert thus opined that the only real option to mitigate any such risk would be for the father to cease his fetish behaviour in any manner to which the children were likely to be exposed including refraining from engaging in his minority lifestyle when the children are in his care, terminating his business or “completely de-identifying himself from his business and [the minority community] at large”.
When the proceedings were adjourned and judgment reserved the father had consented to an order following the evidence of his online presence. The order (which required the father to remove from all digital or electronic platforms any association or connection between his name and his business and any organisation that promotes his minority lifestyle) goes some way to breaking the nexus between the father and his business. There still remain, however, issues of risk arising from his ongoing engagement in the behaviours in question and his general association with the minority community with which he identifies, which seeks wider community acceptance of the desires and behaviour of members of that community.
The father’s understanding of how socially unacceptable and bizarre his behaviour may appear to the general community as opined by the expert has already been considered. The connection between the father’s poor understanding as to these matters and his capacity as a parent and attitude to the children was explained by the expert (and outlined in 114 of these Reasons).
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
The proposed orders which in my view are least likely to lead to the institution of further proceedings in relation to the children are those proposed by the mother. These orders if made will effectively sever the children’s relationship with their father. It is also the case that if the father were to accept the findings of the expert and this Court, recognise that his attitudes and behaviour pose a risk of harm to the children and take steps to engage in treatment from an appropriately qualified expert then it is likely that he will seek to revisit the parenting arrangements. However, possibilities of this nature are always a live issue in any parenting proceedings.
Having identified that the orders proposed by the mother are the least likely to lead to the institution of further proceedings, I do not consider it preferable to make the order she seeks on this basis, where other weighty considerations such as parental capacity and the potential for orders to sever important relationships loom large.
Any other relevant fact or circumstance
The expert opined that if the Court were to make an order that the children spend no time with their father this would need to be explained to them in a child-focused manner and by an appropriately qualified person with a view to reducing the risks of harm to the children arising from the sudden removal of their father from their lives. Under cross-examination the mother said she would seek an order that the ICL and/or a family consultant or other qualified person explain the orders to the children.
CONCLUSION
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[17] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[17] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother that she have sole parental responsibility means that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the children and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.
Up until final submissions the father had sought equal shared parental responsibility for the children, but in the course of final submissions it was indicated that he consented to an order that the mother have sole parental responsibility as also proposed by the ICL. The father can be taken to have agreed that the presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility has been rebutted in this case, and that it would not be in the children’s best interests for the parents to have such shared parental responsibility. In these circumstances, I propose making that order as consented to by each of the parties.
Both the ICL and the father seek further orders in relation to informing the father of proposed decisions relating to the long term care and welfare of the children and consulting with him about such matters respectively. In my view, the question of such further proposals are in the children’s best interests will be resolved by a determination as to the children’s future living arrangements.
The father’s time with the children
As indicated and discussed, the parties consent to an order which reflects their recognition that an arrangement in which the children live with the mother is in the children’s best interests. The ambit of this dispute is thus entirely in relation to whether it is in the children’s best interests to spend time with their father and if so, the circumstances in which that should occur.
As discussed at length in these Reasons, the shortcomings in the father’s parental capacity and associated risks he poses to the children of psychological harm is the most salient matter in these proceedings. As indicated, I am of the view that it is only in the children’s best interests for orders to be made to foster a meaningful relationship with the father if he can satisfy the Court that he does not pose the risk of harm to the children as identified by the expert.
As I found the father’s expressed willingness to undertake a course of therapy from a qualified expert to address his desires and behaviours unconvincing, and accept the view of the expert that as these matters form part of the father’s identity and entrenched position in a community of like-minded individuals, he is incapable of addressing the matters of risk. For this reason, and for the other reasons given earlier when considering that matter, it is not proper in my view to make an order that the father seek treatment of this nature notwithstanding that he agrees to such an order. In these circumstances, the ICL agrees that it is not in the children’s best interests for orders to be made that the children spend time with the father.
The father has not satisfactorily addressed the issues of risk identified by the expert, and the only way to mitigate risks he poses to the children is for their time with him, if it is to occur, to be supervised. The limitations associated with a paid supervision service for long term have been discussed. As no other arrangement has been proposed, it is in my view in the children’s best interests for their relationships with their father to be severed rather than for them to spend unsupervised time with him as he proposed.
Having regard to all of the best interest considerations as discussed, I am of the view that the orders proposed by the mother that the children spend no time with the father are proper and in the children’s best interests.
In these circumstances, the additional orders proposed by the ICL in relation to the mother informing the father of proposed decisions relating to the long-term care and welfare of the children, the father directly receiving information from the children’s school and treating health professionals and the like and providing the father with an ability to participate in school-based activities such as parent-teacher interviews, are in my view not proper.
While the outcome of the orders to be made is most unfortunate for the children and they will undoubtedly experience loss associated with the severing of their relationships with the father, there are some risks involved in the mother being required to have some form of ongoing relationship with the father especially given the (albeit unusual) power imbalance between the parties and the mother’s tendency to capitulate to the father’s expectations in recognition of the children’s love for their father as she has done in the past.
I consider that the orders sought by the ICL that the parties provide each other information in relation to contact details and advise the other of information in the event the children suffer any medical emergency or significant illness appropriate. It was in any event indicated on the mother’s behalf in final submissions that she consents to these two particular orders.
The father’s proposed suite of orders also includes an order that the children have electronic communication with him in the event the Court were to endorse an arrangement in which the children spend time with him. As I am not satisfied for the reasons given that it is in the children’s best interests that orders be made to foster their relationship with their father, it follows that it is not appropriate that they maintain any electronic communication with him as sought.
Given that there is to be no contact between the children and the father, I do not consider it necessary to make the various restraints proposed by the ICL, other than the restraint in relation to the maternal uncle.
For the foregoing reasons, I make the orders as set out at the forefront of this judgment.
I certify that the preceding two hundred and ten (210) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 23 June 2021
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Expert Evidence
-
Consent