ZAWADZKI & ZAWADZKI
[2019] FamCA 631
•6 September 2019
FAMILY COURT OF AUSTRALIA
| ZAWADZKI & ZAWADZKI | [2019] FamCA 631 |
| FAMILY LAW – CHILDREN – Best Interests – Where parenting orders were made in relation to two children in 2014 – Where it was determined that the children should live with the mother, that she have sole parental responsibility and that the children spend only supervised time with the father – Where the father was determined to pose an unacceptable risk of harm such that supervision was required – Where the mother subsequently died in late 2014 and the children have been cared for by their older brother since – Where the children have continued to have regular supervised time with the father – Where the father has undertaken programs to address his emotional dysregulation – Where the father has demonstrated insight into how his own actions have contributed to the requirement for supervision – Where the children will benefit from having a meaningful relationship with the father – Where it is accepted by the Court that the father no longer poses an unacceptable risk of harm such that supervision is required – Where continued supervision is likely to be detrimental to the children’s relationship with the father – Where the children’s older brother has been the children’s primary carer for such a time that it is their best interests that they continue to live with him – Where the children will live with their older brother and he will have sole parental responsibility in relation to most long-term issues – Where the children will spend unsupervised time with their father – Where such time will increase on a graduated basis. |
| Family Law Act 1975 (Cth) |
| Amador v Amador (2009) 43 Fam LR 268 Banks & Banks (2015) FLC 93-637 Donaghey & Donaghey (2011) 45 Fam LR 183 Donnell & Dovey (2010) FLC 93-428 In the Marriage of A (1998) FLC 92-800 In the Marriage of B (1993) FLC 92-357 M & M (2009) FLC 98-047 |
| APPLICANT: | Mr F Zawadzki |
| RESPONDENT: | Mr A Zawadzki |
| INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
| FILE NUMBER: | BRC | 8417 | of | 2015 |
| DATE DELIVERED: | 6 September 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 13, 14, 15, 16 & 17 March 2017; 26 and 27 August 2019 |
REPRESENTATION
| APPLICANT: | In person on 13, 14, 15, 16 & 17 March 2017 |
| COUNSEL FOR THE APPLICANT: | Mr Linklater-Steele on 26 and 27 August 2019 |
| SOLICITOR FOR THE APPLICANT: | Parker Family Law on 26 and 27 August 2019 |
| RESPONDENT: | In person on 13, 14, 15, 16 & 17 March 2017 |
| COUNSEL FOR THE RESPONDENT: | Mr Fisher by way of direct access brief on 26 and 27 August 2019 |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | By Mr Andrew on 13, 14, 15, 16 & 17 March 2017 and by Ms Oakley on 26 and 27 August 2019 |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All previous parenting Orders are discharged.
The children, B born … 2006 and C born … 2008, live with Mr Zawadzki.
Mr Zawadzki have sole parental responsibility for the children in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)), other than the children’s names and changes to their living arrangements that would make it significantly more difficult for them to spend time with their father.
Other than in emergency circumstances, Mr Zawadzki shall, prior to making a decision about any major long term issue:
(a)inform the father in writing of the issue about which a decision needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the father fourteen (14) days after the provision by him of the information referred to above to respond to the same in writing; and
(c)consider the father’s response, if any, when coming to his decision about any such issue; and
(d)inform the father of the final decision he has made with respect to that issue as soon as practicable thereafter.
The father and Mr Zawadzki shall have equal shared parental responsibility in relation to the issue of the children’s names and any changes to their living arrangements that would make it significantly more difficult for them to spend time with their father.
Notwithstanding the provisions of Clause (3), the father shall be responsible for the daily care, welfare and development of the children when they are living with, or spending time with, him.
The children shall spend time with the father at all times as may be agreed between the father and Mr Zawadzki in writing but, failing agreement, as follows:
(a)on Saturday 7 September 2019 (if possible) and 14 September 2019: from 9.00 am until 2.00 pm, with changeovers to occur at D Contact Centre, Suburb E; and then
(b)on each of Saturday 21 September 2019, 28 September 2019 and 5 October 2019: from 9.00 am until 5.00 pm, with changeovers to occur at D Contact Centre, Suburb E; and then
(c)from after school on Friday 11 October 2019 until 5.00 pm on Saturday 12 October 2019, with the father or his nominee to collect the children from school at the commencement of the time and changeover at the conclusion of the time to occur at McDonald’s Suburb BC or such other public place as is agreed between the father and Mr Zawadzki in writing; and then
(d)from after school on Friday 18 October 2019 until 5.00 pm on Saturday 19 October 2019, with the father or his nominee to collect the children from school at the commencement of the time and changeover at the conclusion of the time to occur at McDonald’s Suburb BC or such other public place as is agreed between the father and Mr Zawadzki in writing; and then
(e)from after school on Friday 25 October 2019 until 5.00 pm on Saturday 26 October 2019, with the father or his nominee to collect the children from school at the commencement of the time and changeover at the conclusion of the time to occur at McDonald’s Suburb BC or such other public place as is agreed between the father and Mr Zawadzki in writing; and then
(f)from after school on Friday 1 November 2019 until 5.00 pm on Sunday 3 November 2019, with the father or his nominee to collect the children from school at the commencement of the time and changeover at the conclusion of the time to occur at McDonald’s Suburb BC or such other public place as is agreed between the father and Mr Zawadzki in writing; and then
(g)from after school on Friday 15 November 2019 until 5.00 pm on Sunday 17 November 2019, with the father or his nominee to collect the children from school at the commencement of the time and changeover at the conclusion of the time to occur at McDonald’s Suburb BC or such other public place as is agreed between the father and Mr Zawadzki in writing; and then
(h)from after school on Friday 29 November 2019 until 5.00 pm on Sunday 1 December 2019, with the father or his nominee to collect the children from school at the commencement of the time and changeover at the conclusion of the time to occur at McDonald’s Suburb BC or such other public place as is agreed between the father and Mr Zawadzki in writing; and then
(i)from after school on Friday 13 December 2019 until 5.00 pm on Monday 16 December 2019, with the father or his nominee to collect the children from school at the commencement of the time and changeover at the conclusion of the time to occur at McDonald’s Suburb BC or such other public place as is agreed between the father and Mr Zawadzki in writing; and then
(j)from 12.00 pm Christmas Day until 5.00 pm on Saturday 28 December 2019, with the father or his nominee to collect the children from McDonald’s Suburb VV at the commencement of the time and changeover at the conclusion of the time to occur at McDonald’s Suburb BC or such other public place as is agreed between the father and Mr Zawadzki in writing; and then
(k)from 3.00 pm on Friday 10 January 2020 until 5.00 pm on Monday 13 January 2020, with the father or his nominee to collect the children from McDonald’s Suburb VV at the commencement of the time and changeover at the conclusion of the time to occur at McDonald’s Suburb BC or such other public place as is agreed between the father and Mr Zawadzki in writing; and then
(l)from 3.00 pm on Friday 24 January 2020 until 5.00 pm on Sunday 26 January 2020, with the father or his nominee to collect the children from McDonald’s Suburb VV at the commencement of the time and changeover at the conclusion of the time to occur at McDonald’s Suburb BC or such other public place as is agreed between the father and Mr Zawadzki in writing; and then
(m)from after school on Friday 7 February 2020 until before school on Monday 10 February 2020 and each alternate weekend thereafter: with the father or his nominee to collect the children from school at the commencement of the time and the father or his nominee to return the children to school at the conclusion of the time; and, in addition
(n)for five (5) consecutive nights during the school holidays at the end of Term 1 in 2020: being from after school on Friday 3 April 2020 until 5.00 pm on Wednesday 8 April 2020, with the father or his nominee to collect the children from school at the commencement of the time and Mr Zawadzki or his nominee to collect the children from McDonald’s Suburb BC at the conclusion of the time; and, in addition
(o)commencing with the holidays at the end of Term 2, 2020: for half of all school holiday periods, with such time to occur as follows unless agreed in writing between the father and Mr Zawadzki:
(i)for the school holiday periods other than that which occurs at the end of Term 4:
A.for the first week of each school holiday period in odd numbered years, with the father or his nominee to collect the children from school at 3.00 pm on the last day of the school term and Mr Zawadzki or his nominee to collect the children from McDonald’s Suburb BC at 5.00 pm on the following Friday; and
B.for the second week of each school holiday period in even numbered years, with the father or his nominee to collect the children from McDonald’s Suburb VV at 5.00 pm on the Friday after school ends for that Term and to return the children to school on the first Monday of the following Term; and
(ii)for the first, third and fifth weeks of the December 2020/January 2021 school holiday period; and
(iii)commencing in December 2021: for the first half of the Term 4 school holiday period in odd numbered years and for the second half of Term 4 school holiday period in even numbered years, with such time to occur as follows:
A.when the time occurs during the first half of the school holiday period: from after school on the day school finishes for the Term until 5.00 pm on the fourth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday); and
B.when the time occurs during the second half of the school holiday period: from 5.00 pm on the fourth Friday of the school holiday period (where the day on which school ends for the Term is the first Friday) until 5.00 pm on the Friday before school recommences for the year.
In addition to the time provided for in the Orders set out above, the children shall also spend time with their father:
(a)from 12.00 pm Christmas Eve until 12.00 pm Christmas Day in even numbered years; and
(b)commencing in 2020: on the children’s birthdays at times as are agreed but, failing agreement:
(i)if on a school day: from after school until 6.00 pm, with the father or his nominee to collect the children from school at the commencement of the time and the father or his nominee to return the children to McDonald’s Suburb VV at the conclusion of the time; and
(ii)if on a non-school day: from 12.00 pm until 4.00 pm, with the father or his nominee to collect the children from McDonald’s Suburb VV at the commencement of the time and Mr Zawadzki or his nominee to collect the children from McDonald’s Suburb BC at the conclusion of the time.
(c)on the father’s birthday in 2020 and each year thereafter: at times as are agreed but, failing agreement:
(i)if the birthday falls on a school day other than Friday: from after school until 6.00 pm that day, with the father or his nominee to collect the children from school at the commencement of the time and the father or his nominee to return the children to McDonald’s Suburb VV at the conclusion of the time; and
(ii)if the birthday falls on Friday, Saturday or Sunday: from after school on the Friday of the weekend on which the father’s birthday falls until the start of school on the Monday immediately after the weekend on which the father’s birthday falls, with the father or his nominee to collect the children from school at the commencement of the time and the father or his nominee to return the children to school at the conclusion of the time.
(d)for the Father’s Day weekend in 2020 and each year thereafter: from after school on the Friday immediately preceding Father’s Day until the start of school on the Monday immediately after Father’s Day, with the father or his nominee to collect the children from school at the commencement of the time and the father or his nominee to return the children to school at the conclusion of the time.
The children shall be at liberty to communicate by telephone with the father at all reasonable times that may be agreed between him and Mr Zawadzki but, failing agreement, between 6.00 pm and 7.00 pm each Wednesday evening with the father to call the children and Mr Zawadzki to make the children available to receive his call.
Unless agreed between the father and Mr Zawadzki, the children shall spend time with Mr Zawadzki from 12.00 pm Christmas Eve until 12.00 pm Christmas Day in all odd numbered years.
Unless otherwise specified in this Order or agreed between the father and Mr Zawadzki in writing:
(a)the father or his nominee will collect the children at the commencement of their time with him:
(i)from their schools if their time with him starts on school day; or
(ii)from McDonald’s Suburb VV if their time with him starts on a day that is not a school day,
(b)Mr Zawadzki or his nominee will collect the children from McDonald’s Suburb BC at the conclusion of their time with the father.
Mr Zawadzki will ensure that, when the children spend time with the father, they attend with any clothing, books, school papers and other belongings which they require for school or extra-curricular activities.
The father shall ensure that the items sent with the children at changeover are returned at the conclusion of the time that the children spend with him.
Commencing with the Term 1, 2020 school holiday period, the operation of Clause (7)(m) shall be suspended during school holiday periods and the time provided for in Clause (7)(m) shall recommence as follows:
(a)when the children have spent the first half of the school holiday period with the father – from after school (or 3.00 pm if not a school day) Friday in the first week of the school Term; and
(b)when the children have spent the second half of the school holiday period with the father – from after school (or 3.00 pm if not a school day) Friday in the second week of the school Term.
Each of the father and Mr Zawadzki shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the children.
Neither the father or Mr Zawadzki shall enrol either of the children in any activity which occurs during time that child is living or spending time with the other person without first obtaining the written consent of that person.
Within fourteen (14) days of the date of this Order, Mr Zawadzki shall advise the father in writing of the name of a medical centre at which the children shall hereafter attend and, save for any emergency situation, both the father and Mr Zawadzki shall ensure that the children receive any required general medical treatment from practitioners at that centre.
Mr Zawadzki and the father shall:
(a)keep the other informed at all times of their residential address, contact telephone numbers (landline and mobile) and email address and advise the other of any change to the same within forty-eight (48) hours of such change; and
(b)keep each other informed of the names, addresses and contact details of any specialist medical professional whom treats the children; and
(c)inform the other as soon as is reasonably practicable of any accident, emergency, hospitalisation, serious medical condition or significant health issue suffered by either child whilst in that person’s care and also provide details of the treatment the child has received in relation to the same; and
(d)keep the other informed of the details of any school, educational facility or extra-curricular activity provider attended by the children.
By this Order, Mr Zawadzki and the father hereby authorise any school, educational facility or extra-curricular activity provider attended by the children to provide to each of them, at that person’s request and cost, all information about the children’s educational progress and school related activities.
Subject to the conditions imposed by the children’s school or extra-curricular providers, these Orders authorise both Mr Zawadzki and the father to attend school functions and extra-curricular activities to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
By this Order, Mr Zawadzki and the father hereby authorise any specialist medical professional from whom either of the children receives treatment to provide to each of them, at that person’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.
Neither Mr Zawadzki and the father denigrate the other, their partner or their family to, or in front of, or within the hearing of, the children and each shall direct third parties to refrain from denigrating either the other person, their partner or their family to, or in front of, or within the hearing of, the children and, failing their compliance with such a direction, shall remove the children from that environment immediately.
Save as may occur in any counselling or therapy consultation in which the children engage or in response to a direct question asked of them by either of the children, neither Mr Zawadzki or the father shall discuss these proceedings with the children and each of them shall ensure that the children are not shown any document filed in the Court in the proceedings and shall use their best endeavours to ensure no other person engages in such behaviour and, failing compliance with a direction to cease the behaviour, shall remove the children from the environment immediately.
The children are permitted to travel outside the Commonwealth of Australia for holiday purposes after 31 December 2020 unless an earlier date is agreed between Mr Zawadzki and the father in writing.
In the event that either the father or Mr Zawadzki wishes to remove the children or either of them from Australia for the purpose of holiday travel after 31 December 2020, the following shall occur:
(a)the travelling person shall provide the other person with not less than eight (8) weeks’ notice in writing of any proposed travel; and
(b)the person wishing to travel will provide the other person with an itemised itinerary of the proposed travel plans; and
(c)the travelling person shall, fifteen (15) days before the proposed date of departure from the Commonwealth of Australia, provide the other person with an itemised itinerary, contact details whilst overseas, copy of insurance policies, all accommodation and flight details and a copy of the children’s return tickets.
Unless agreed by the father and Mr Zawadzki parents in writing, the children shall not be taken to a country which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
Both the father and Mr Zawadzki shall co-operate with each other regarding the children’s passports and both shall sign any documents necessary to ensure that the children obtain and retain valid passports.
In the event that any document necessary to obtain an Australian passport or other Australian travel document for the children is not signed by the father or Mr Zawadzki or is returned to the person requesting the signature and return of the same in a state that is incomplete or such that it does not comply with the requirements for a passport or other Australian travel document to issue, the requesting person is at liberty to complete replacement travel documents and, if necessary, a Registrar of the Family Court of Australia is appointed, pursuant to s 106A of the Family Law Act1975 (Cth), to sign any such document in lieu of the non-executing person.
Save for travel outside of Australia for holiday purposes, Mr Zawadzki and the father, their respective servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia.
Each of the father and Mr Zawadzki has leave to provide a copy of the Order made 6 September 2019 to:
(a) the schools at which the children attend; and
(b) any medical practitioner/s upon whom the children attend; and
(c) the Department of Child Safety, Youth & Women.
AND IT IS FURTHER ORDERED THAT
The Independent Children’s Lawyer do all things necessary to engage Mr WW for the purpose of speaking with the children about the matters outlined in paragraph 159 of the Reasons for Judgment published on 6 September 2019 prior to Friday 11 October 2019 and, in order to facilitate this meeting, the Independent Children’s Lawyer has leave to provide a copy of the Order made on 6 September 2019 and the Reasons for Judgment published that day to Mr WW.
Mr Zawadzki do all things necessary to ensure that the children attend on Mr WW on a day and at a time notified by the Independent Children’s Lawyer in writing.
Following compliance with the terms of Clauses (31) and (32), the Independent Children’s Lawyer is discharged.
All outstanding applications are dismissed.
The parties have liberty to apply to be heard further in relation to Clause 17 of this Order.
Pursuant to s 65DA(2) and s 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zawadzki & Zawadzki has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8417 of 2015
| Mr F Zawadzki |
Applicant
And
| Mr A Zawadzki |
Respondent
And
| The Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 9 April 2014, I made orders that the children B born in 2006 (and then 7 years and 7 months of age) and C born in 2008 (and then 5 years and 8 months of age), live with their mother and spend supervised time with their father each fortnight.
The orders continued the supervised time the children had been spending with their father since about mid-February 2011 (when B was 4 ½ years of age and C was about 2 ½ years of age).
The imposition of supervision over the children’s time with their father followed my finding that he then posed an unacceptable risk to them. Save as a consequence of orders made in the State Children’s Court in around August/September 2015, pursuant to which the children spent unsupervised time with their father for four/five hours on five occasions, their time with him since then has been supervised.
In the Reasons for Judgment delivered on 9 April 2014 (“the 2014 Reasons”), I expressed my conclusions that I was left with the uncomfortable feeling that the father’s experiences within his family as a child and his consequent interaction with his sister Ms HH resulted in him failing to appreciate appropriate boundaries in his behaviour with the then young children;[1] I also concluded that I was then persuaded that any unsupervised time between the father and the children was attended by too high a risk that they may be harmed by him.[2] Such latter conclusion rested, at least in part, on my acceptance of evidence given by Dr V to the effect that, until the children were of an age where they would be comfortable to report any concerns and reject any approaches, unsupervised time appeared to be too high a risk.[3]
[1] Reasons for Judgment published 9 April 2014 at [211].
[2] Reasons for Judgment published 9 April 2014 at [212].
[3] Reasons for Judgment published 9 April 2014 at [209].
The children’s mother subsequently died in December 2014. By then, the children’s older brother F (whom I will refer to as “Mr Zawadzki” in these Reasons) lived with them; they have continued to live with him and, since he and his partner Ms TT began to live together in 2017, with her also. The children have continued to spend supervised time with their father. He has continued to seek that they live with him or at least spend unsupervised time with him on an increasing basis.
It is relevant to the determination of the current proceedings to note that, in the 2014 Reasons, I noted that Mr Zawadzki, who had not initially believed that his father had sexually abused his brothers, had joined with the mother in that belief by the time of the first trial; further, whilst he had initially thought he had never been ‘molested’ by the father, at the time of the first trial he thought something inappropriate, which he ‘blocked’, had happened; on this basis, he thought he had been sexually abused by his father when he was about five years of age.[4]
[4] Reasons for Judgment published 9 April 2014 at [13].
I accept that prior to her passing on 3 December 2014, the mother told a supervisor at D Contact Centre words to the effect that the father had changed and that having Ms M (his partner) present would also provide protective factors for the boys: such comments were made in the context of her expressing her concerns about the children being placed in foster care and her thoughts that perhaps the children would be better in the care of their father than strangers.
I accept that, save for five visits of about four hours of unsupervised time – which occurred in about August and September 2015 as a consequence of an order made in the Ipswich Children’s Court – the children’s time with their father has been supervised since about mid-February 2011.
Further, consequent upon an interim order made on 27 October 2015 (which formalised the children’s living arrangements), Mr Zawadzki has sole parental responsibility for major long-term decisions relating to the children; the order also provided that the children have telephone communication with the father each Wednesday between 6.00 pm and 7.00 pm.
The first, and what I regard as the major, issue for determination in these proceedings between Mr Zawadzki and his father is whether the father continues to pose an unacceptable risk to the children such that their interaction with him requires the continuation of supervision or whether the risk he was previously found to pose has, by virtue of the combination of:
a)the passage of time and the consequent impact of the same on the children’s ages and maturity; and
b)his behaviours since the findings were made; and
c)the continued presence in his life of his partner of some nine years, Ms M,
been ameliorated to such an extent that it can be regarded as no longer amounting to an unacceptable risk.
If it is found that the father continues to pose an unacceptable risk to the children, then the continuation of supervision over their time with him is necessary to ensure that they are protected from physical or psychological harm from being subjected or exposed to abuse or family violence; further, consideration then needs to be given to the frequency at which the children will continue to spend time with their father.
If it is found that the father no longer poses an unacceptable risk to the children, then the most significant additional issues to be determined are whether it is in their best interests now to move from their brother’s primary care to live with their father (as their father seeks) or whether their best interests will be met by continuing to live primarily with Mr Zawadzki and spend increasing amounts of unsupervised time with their father.
Applicable legislative provisions and principles
All of the issues have to be considered within the statutory framework imposed by the relevant sections of the Family Law Act 1975 (Cth) (“the Act”), implemented in the way authority requires when, as here, one of the parties to proceedings for parenting orders is not a parent of the children.[5] I have specifically noted this so that there can be no doubt that I am fully cognisant of the manner in which the relevant matters must be considered in determining those parenting orders which, in these circumstances, are in these children’s best interests. Any intermingling of my discussion of the relevant evidence and the considerations should not be regarded as demonstrative of any confusion as to the appropriate application of the binding principles.
[5] Donnell & Dovey (2010) FLC 93-428.
I may make such parenting orders as I think proper;[6] in determining the terms of the same, I must have regard to the Objects of Part VII of the Act and the Principles which underpin those Objects,[7] noting always that the paramount consideration is each child’s best interests.[8]
[6] Family Law Act 1975 (Cth) s 65D.
[7] Family Law Act 1975 (Cth) s 60B.
[8] Family Law Act 1975 (Cth) s 60CA and s 65AA.
Further, whilst the matters to which regard must be had in determining those parenting orders which are in each child’s best interests are those prescribed by s 60CC of the Act, the requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion;[9] the process of considering involves taking note of the necessary matters or giving heed to them or thinking over or reflecting on them. I have given heed to, thought over and reflected on all of the relevant considerations in arriving at my conclusion about those orders which are in these children’s best interests; any failure to mention a relevant consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in the children’s best interests.
[9] Banks & Banks (2015) FLC 93-637: whilst said in the context of a consideration of interim proceedings, there is no reason to think that the underlying principle does not apply to the final disposition of proceedings.
A number of practical and uncontroversial matters relevant to a consideration of those orders which are now in the children’s best interests may be stated briefly: Mr Zawadzki and his partner and the children currently live at Springfield Lakes in a home he bought using the proceeds of their mother’s estate; the father and Ms M live at Suburb BC; these suburbs are located about 20 minutes’ drive from each other; Ms M has routinely participated in every second supervised visit the father has had with the children via services provided by a Contact Centre at Suburb E and usually travels with him to and from the other visits; Mr Zawadzki and the father do not currently communicate or co-operate with each other; Mr Zawadzki has consistently rebuffed his father’s attempts to mediate their differences; B is currently in Grade 7 at VV State School, whilst C is currently in Grade 5 at WW State School.
In addition, it is uncontroversial that the children’s supervised time with their father has occurred away from the Contact Centre and, until relatively recently, for about five hours per fortnight; the reduction in time more recently is the consequence of the father’s more recent inability to afford the significant cost associated with the same. A consequence for the children of the opportunity to spend supervised time with their father (and Ms M) away from the Contact Centre is twofold: the time has been of greater duration than would normally have been possible and the children have been able to engage in activities (such as going to parks, shopping centres, the movies and participating in other activities) with their father and Ms M which would not have been possible if the time had been confined to the Contact Centre itself.
I accept the evidence given by Ms SS,[10] the person responsible (at least prior to the March 2017 tranche of the proceedings) for managing the children’s time with their father via the services provided by the Contact Centre. Whilst only personally supervising two or three of the many visits between the children and their father, she prepared three reports – dated 7 December 2014, 26 October 2015 and 17 January 2017 – from the notes prepared by the actual supervisors of this time. When cross-examined in March 2017, she confirmed that the children had been observed during their time with the father to be physically and verbally affectionate toward him; she confirmed that the supervisors had considered that the children demonstrated a connection to, and closeness with, their father. She also reiterated that her observations of the sessions she supervised were that the children’s time with their father had been positive and enjoyable for them.
[10] A social worker.
I accept that, on occasions in 2016, the children’s behaviour during their supervised visits with their father was boisterous, energetic, hyperactive, impulsive and, at times, defiant and that, on occasions, he struggled to manage the same. I also accept, however, that on other occasions, the children responded affectionately to their father and greeted him excitedly with hugs and kisses and ran at him or jumped on him.
It is, I think, clearly established by the more recent records kept by the Contact Centre[11] (from January 2017 to date) that the children’s time with their father has been overwhelmingly positive; they have generally been happy to attend and spend time with their father and Ms M; they have expressed affection and love for both their father and Ms M on many occasions; they have engaged well with their father and have often been responsive to his attempts to curtail and manage their behaviours appropriately; they have consistently sought out close physical interaction with him and have approached him for help; they have raised issues with him and sought his input about matters such as them being bullied at school and/or by friends; they have been responsive, on occasion, to his correction of their behaviours and appreciative of the food and gifts he has brought them.
[11] Exhibit 15.
However, more recently, the notes record that the children have occasionally been dismissive of their father and Ms M; more recently they have started to mock his and Ms M’s accents and have demonstrated oppositional and dismissive behaviour toward him; more recently this year, B (who will soon be thirteen years of age) has occasionally been sarcastic, disagreeable and negative but has then demonstrated positive behaviours toward his father during the next visit; on some visits, the children have been grumpy and tired, whilst on the following visits they have again engaged well with their father.
The notes maintained by the Contact Centre also establish that the father has consistently been appropriate in his interactions with the children; he has engaged well with them; has been very supportive and encouraging of them; he has behaved in a calm, co-operative and friendly manner toward them and the Contact Centre staff; he has consistently praised the children’s behaviours and been affirming of them as people; he has consistently demonstrated his affection for them to them and has shown that he has the capacity to soothe and settle them when their behaviour has been boisterous; he has been responsive to the children’s requests, albeit that, on occasion, the supervisor has thought him over-protective of the children and as treating them as younger than they are; and he has been recorded as responding appropriately to their complaints about being bullied.
There is nothing in any of these notes of the supervised time between the children and the father to suggest that, during these many supervised visits, the father has made any comment to the children that has been critical of Mr Zawadzki’s care of them or that he has said anything denigrating of Mr Zawadzki to them. There is nothing in the notes to support the contention that he has said anything to them or behaved in their presence in a manner that is likely to undermine Mr Zawadzki’s role as the person entrusted with their primary care.
Competing proposals
Whilst Mr Zawadzki’s position, as particularised in his most recent Case Outline Document and as communicated by him to Mr WW during the most recent interview, was that the current parenting regime – that is, that he have sole parental responsibility for the major long-term issues relating to the children, that they continue to live with him and spend supervised time with their father – continue, he ultimately adopted the position taken by the Independent Children’s Lawyer that the children’s supervised time with their father occur at a reduced frequency. He also sought a reduction in the duration and frequency of the children’s telephone communication with their father.
Relevant to a consideration of parts of Mr Zawadzki’s proposal is that his partner, who works part-time for approximately 20 hours per week, cares for the children when he is at work as a doorman at a nightclub – typically for four days each week (between 11.00 pm and 4.00 am on Wednesday and Thursdays and from 6.00 pm until midnight on Friday and Saturday nights). It is also relevant to record that Mr Zawadzki continues to express that he has difficulty envisaging any restoration of his relationship with his father and feels that it is “a bit passed that point”.
The father seeks that he be accorded sole parental reasonability for the major long-term issues relating to the children and that they move to live with him and spend time with Mr Zawadzki every second weekend and for half of the school holiday periods and on special or celebratory occasions. He is currently unemployed, having ceased his work for a company earlier this year; he hopes to gain employment with a different company after he completes the necessary training and anticipates that he will engage in shift-work between Monday and Friday each week. He continues to live with his partner, Ms M.
Mr WW, a social worker, has prepared two reports in this matter. When all of the observations of the children’s interactions during supervised time with their father over a lengthy period of time are combined with Mr Zawadzki’s comments to Mr WW in July 2019 about the children having the opportunity to continue in their relationships with their father, the children’s comments to Mr WW and Mr WW’s observations and assessments of the children’s interactions with the father on the two occasions he interviewed, I am persuaded that there is a positive benefit to the children in having a meaningful relationship with their father. Similarly, the evidence given by Mr WW of his observations of the children’s interactions with Mr Zawadzki and their comments to him about Mr Zawadzki easily persuades me that there is a benefit to the children in having a meaningful relationship with Mr Zawadzki. Whilst it was submitted to the contrary by Counsel for Mr Zawadzki, on balance I also accept that the father acknowledges the benefit to the children of the opportunity to maintain a meaningful relationship with Mr Zawadzki. I am not persuaded that, by wanting the children to live primarily with him, the father does not recognise the importance to them of Mr Zawadzki.
However, whatever these benefits, it is clear that the imperative of protecting the children from physical or psychological harm from being subjected or exposed to abuse or family violence is to be given greater weight than the benefit to them of meaningful relationships with each of their father and their brother.[12]
[12] Family Law Act 1975 (Cth) ss 60CC(2)(b) and (2A).
Similarly, whilst I accept that the father loves the children and that he has demonstrated his commitment to remaining a part of their lives over the years of supervision (which has also involved significant expenditure to enable the children to spend time with him away from the Contact Centre and for longer than the standard two hours), these matters would not, of themselves, persuade me that it is in the children’s best interests to spend unsupervised time with him if I otherwise now thought that to do so would place them at an unacceptable risk of suffering harm.
Summary of findings previously made
A number of matters expressed in the 2014 Reasons are particularly relevant to the consideration of whether spending unsupervised time now with the father would expose the children to an unacceptable risk of harm. In those Reasons I expressed and/or recorded that:
a)I did not accept the father’s denial of the suggestion that he had kissed the children on the bottom;[13] and
[13] Reasons for Judgment delivered 9 April 2014 at [90].
b)I did not accept that B had been coached by mother;[14] and
[14] Reasons for Judgment delivered 9 April 2014 at [92].
c)I was persuaded to conclude it was likely that the children had been exposed to sexual behaviour or abuse;[15] and
[15] Reasons for Judgment delivered 9 April 2014 at [111].
d)Dr V, Consultant Psychiatrist, had considered that, until the children were of an age where they were comfortable to report any concerns and reject any approaches, unsupervised time with the father appeared to be too high a risk;[16] and
[16] Reasons for Judgment delivered 9 April 2014 at [209].
e)I was persuaded that the children would be at an unacceptable risk of exposure to inappropriate intimate behaviour from the father if they spent unsupervised time with him and noted that I had arrived at this conclusion having considered the evidence about the children’s behaviours, B’s comment at T day care, B’s statements to Departmental officers in February 2011 (which I considered suggested, at the very least, that he has witnessed sexual intimacy) and the other expert evidence I indicated I had accepted;[17] and
[17] Reasons for Judgment delivered 9 April 2014 at [210].
f)I was left with the uncomfortable feeling that the father’s experiences within his own family as a child and his consequent interaction with his sister Ms HH had resulted in him failing to appreciate appropriate boundaries in his behaviour with the children;[18] and
[18] Reasons for Judgment delivered 9 April 2014 at [211].
g)I was persuaded, as Dr V was, that, at present, any unsupervised time between the father and the children came with too high a risk that they may be harmed;[19] and
h)I also accepted the mother’s evidence that the father had previously been “verbally, emotionally and physically abusive” of F; that it was more likely than not that, over the years, he had engaged in unregulated and, on occasion, explosive behaviour toward F and that I accepted that, in the children’s presence, the father had previously referred to the mother using names like “whore”, “slut”, “lazy bitch”, and “fucked up sick bitch”;[20] and
i)I considered that ongoing exposure to this type of behaviour was unlikely to provide benefits to the children in terms of either their functioning or the modelling of socially appropriate behaviours and that I thought it likely this behaviour by the father had its source in his difficulties in regulating the expression of emotion and managing his anger[21] and that such conclusions provided an additional buttress for the determination that the children would then have been be at an unacceptable risk of harm if their time with the father was unsupervised;[22] and
j)Dr G, a Clinical and Forensic Psychologist, had recommended the children continue to have supervised time with their father until the risk of further sexual abuse notifications was assessed as low, something he thought would occur following a reduction in the father’s feelings of hostility and stress and upon his participation in specified interventions;[23] and
k)I was not then persuaded that Ms M had sufficient capacity to supervise the children’s time with father;[24] and
l)I accepted Dr G’s assessment that the father had demonstrated deception, impulsivity, aggressive actions, marked instability in mood (primarily irritability and frustration), chronic feelings of emptiness and difficulty controlling anger;[25] and
m)I did not accept Mr J’s assessment that the father was “not a hostile or violent person”;[26] and
n)I accepted Dr G’s opinion that because of the father’s personality, his relationship with his children – and significant others – was likely, in the future, to remain turbulent and involve episodes of dysregulated behaviour;[27] and
o)I accepted that the father would probably struggle to manage the children’s manifested behaviour;[28] and
p)I accepted that the evidence established the father had often struggled to manage his anger and regulate his behaviour and that, in 2002, he assaulted the mother in a much more significant and serious manner than he admitted and had hit her to the head, ribs and arm which caused significant bruising to her face and head and which caused her to flee the home with F.[29]
[19] Reasons for Judgment delivered 9 April 2014 at [212].
[20] Reasons for Judgment delivered 9 April 2014 at [213].
[21] Reasons for Judgment delivered 9 April 2014 at [214].
[22] Reasons for Judgment delivered 9 April 2014 at [215].
[23] Reasons for Judgment delivered 9 April 2014 at [217].
[24] Reasons for Judgment delivered 9 April 2014 at [234].
[25] Reasons for Judgment delivered 9 April 2014 at [243].
[26] Reasons for Judgment delivered 9 April 2014 at [244].
[27] Reasons for Judgment delivered 9 April 2014 at [246].
[28] Reasons for Judgment delivered 9 April 2014 at [248].
[29] Reasons for Judgment delivered 9 April 2014 at [249].
I turn to consider whether, nearly five and a half years after those findings about the father’s behaviours were made, the children would now be at an unacceptable risk of harm if their time with him is unsupervised.
Will the children now be at an unacceptable risk of harm if their time with their father is now unsupervised?
The assessment of future potential risk to children requires identification of the nature and magnitude of the risk and an objective assessment of whether or not the risk posed is unacceptable.[30] In undertaking the exercise, the risk of harm alleged (be it of sexual abuse or exposure to family violence)[31] must be clearly identified and the degree or magnitude of the likelihood of the postulated event occurring and the prospect and magnitude of harm that may flow if that event occurs determined: that is, the Court must consider whether there is a risk and, if so, determine whether it is unacceptable. The Court should consider whether the risk of the harmful event occurring is more probable than not, or a real and substantial possibility, or only a remote chance and consideration should also be given to whether steps might be taken so that the determined risk can be ameliorated to something less than constituting an “unacceptable risk.” Put another way, the task is to evaluate the nature and degree of the risk and to determine whether, with or without safeguards, it is acceptable, noting that, where a finding of “unacceptable risk” is made, it is a finding that the risk of harm to the children in having – here, unsupervised time with their father – outweighs the possible benefits to them from that time.[32]
[30] M & M (2009) FLC 98-047 and Donaghey & Donaghey (2011) 45 Fam LR 183.
[31] See: In the Marriage of A (1998) FLC 92-800 at 84,994-84,995 and 84,996; Amador v Amador (2009) 43 Fam LR 268 at 282 [89].
[32] In the Marriage of B (1993) FLC 92-357 at 79,778.
Risk of sexual abuse, physical abuse, emotional abuse and exposure to family violence
The father has continued to take issue with any assertion that he ever behaved abusively toward Mr Zawadzki when he was a child; he continues to note that Mr Zawadzki initially told authorities that his father had never sexually abused him and that he did not think he would have sexually abused the children. Whilst the father has been criticised for continuing to maintain this position despite the findings expressed in the 2014 Reasons, the fact is that, in saying this, he is only accurately recounting what had happened: as noted in the 2014 Reasons at [13] and [14], Mr Zawadzki initially said that he thought he had never been “molested” by the father, but then thought that something inappropriate – which he had “blocked” – had happened such that he thought he had been sexually abused by the father when he was about five years old.
I note that, when he spoke with Dr YY prior to the preparation of the December 2015 report, Mr Zawadzki told him that he could not remember any sexual abuse, but was uncertain about whether it may have occurred; he told Mr WW, in early 2017, that he had no specific recollections about whether the father sexually interfered with him or not; when asked about this issue, he said he simply did not know and commented twice that this was something he did not like to think about; he later said he did not want to talk about it.
Dr YY, a child and adolescent psychiatrist, prepared a report dated 19 October 2015. I accept that, according to the contents of this report, a Departmental officer had reported to him that Mr Zawadzki had been doing an excellent job caring for the children; he had taken them to school regularly, ensured that they were well fed, was encouraging of them, appeared to have a good relationship with them and was open to supporting them visiting with their father. It was also said that their previously observed sexualised behaviour (which was said to have included kissing each other on the lips, asking their father if he could pull his pants down and put his thing in a child’s face, using words such as “nipples, poo, butt, wee, pee”, thrusting their hips back and forth, removing clothes from dolls and ‘mimicking sexual acts with them’) had reduced.
Dr YY also noted that, whilst the Department was said to have concerns about the children spending unsupervised time with their father, when B was interviewed by Departmental officers in around December 2015 and asked whether anyone had ever touched him in the private parts, he said “No.” According to information provided by Ms XX, a Child Safety officer, the children had reported that they enjoyed seeing their father, but preferred not to be alone with him and preferred Ms M to be present. Whilst Ms XX was unable to explain the basis for the children’s asserted preference, the inference was that they might have had a possible fear of being mistreated or abused by their father.
In his December 2015 report, Dr YY expressed his view that he thought the father cared for the children a great deal and understood their biological, psychological and social needs; he assessed the father as potentially a capable caring parent and said he thought him able to work competently to provide for himself, that he had stability, was in a stable relationship and understood the children’s needs and wanted to support them and Mr Zawadzki. His recommendations included that the children be transitioned into their father’s primary care.
However, it became apparent that Dr YY had authored his report without the benefit of access to material that was before the Court; after this was provided to him, he modified some of the opinions and recommendations he had previously made. In explaining this significant change of position (which only occurred just before he was called to give evidence and after the Independent Children’s Lawyer provided him with particularised material), he said that, whilst he thought the father was a very important part of the children’s future, the previous significant issues of emotional abuse and domestic violence raised serious questions about his capacity to primarily parent the children unless he had demonstrated major change vis-à-vis the same. He also said, in summary, that he thought it was not then in the children’s best interests to move to live primarily with their father and that the focus should be on supporting Mr Zawadzki in his primary care of the children – something he thought the father should also focus on.
The provision of material after he had completed his report did not change Dr YY’s opinions about the allegation of sexual abuse made against the father: he maintained his opinion that he believed that the sexual abuse issue was an extraordinarily difficult one; he said it is important to recognise that curious sexual behaviours in children are a normal part of development and that sexualised behaviours in children are not a sign of sexual abuse; he thought it very problematic to place adult interpretation over a child’s statements and that it was extraordinarily difficult to form any clear view about sexual abuse – particularly that which was said to involve a four year old child; he also thought it was not possible to be certain about whether sexual abuse had occurred between the father and the children or not; he said he believed it less likely rather than more likely that the father sexually abused the children and favoured a conclusion that the father had not sexually abused the children and that the mother had misinterpreted their normal, sexually curious behaviours.
I note that the 2014 Reasons do not contain any positive findings that the father has sexually abused any of his children; they also do not contain any findings that he had not sexually abused the children.
Dr YY said in his report that, save for the father’s past solicitation of a prostitute, there was no other history or evidence he elicited that concerned him about the father being a potential sexual danger to children; he also said he found no reason to be concerned that the father was an unacceptable risk to the children.
However, after receiving the provided material, Dr YY outlined that he considered that he had failed to put enough weight on the emotional abuse and domestic violence discussed in the 2014 Reasons. He said he thought the conclusion (expressed in April 2014) that the father was an unacceptable risk because of the emotional and domestic violence more compelling than the expressed concern about the sexual abuse allegations – he opined that the key issues were emotional abuse and domestic violence. Dr YY also explained that, in authoring his report without the benefit of the later-provided material, he had not perhaps placed sufficient weight on the findings about significant domestic violence, the deficiencies in the father’s parenting capacity (as explained by Mr Zawadzki) and the emotional abuse Mr Zawadzki had reported having experienced – he reiterated that Mr Zawadzki had told him that the problems had been mainly verbal abuse. He said, having regard to findings expressed in the 2014 Reasons, that it was quite compelling that there had been significant domestic violence in the family during the marital relationship, that events had occurred in front of the children and directly toward Mr Zawadzki and that this suggested to him that the father had not shown a great deal of insight into the serious nature of these issues.
In March 2017, Dr YY said that he then thought the main issues surrounded the father’s parenting capacity and his capacity to provide ongoing stability for the children and a healthy emotional environment. I note, though, that when cross-examined by the father, Dr YY accepted that he did not have evidence that the father had emotionally abused either of the children.
During his oral evidence in March 2017, Dr YY said, in essence, that he thought the father’s lack of insight into his own parenting problems and lack of insight into the impact his behaviours had had – on the mother and, particularly, on Mr Zawadzki – were both important and weighty matters which had influenced him to change his position: for those reasons he no longer supported the proposal that the children be moved from their stable situation to live with their father (which he described as an “unknown situation” vis-à-vis how well the father would parent them) and, instead, supported the children remaining in Mr Zawadzki’s primary care.
During his evidence in March 2017, Dr YY said, in essence, that whilst Mr Zawadzki should be more supported as the children’s primary care provider, there might be able to be a shift to unsupervised time between the children and their father and that they spend increasing time with him. He said he thought that, in order for this to occur, the father would need to demonstrate that:
a)he could continue to interact well with the children and provide emotional nurturance to them during their time with him; and
b)he accepted the decision that it was best for the children now to continue to live primarily with Mr Zawadzki; and
c)he was prepared to better himself by taking more responsibility for, and following some of the recommendations previously made about, improving his self-regulation; and
d)he was able to show better emotional control and to actively support Mr Zawadzki as the children’s primary carer.
Dr YY also opined that it would be worthwhile for the father to consider doing a parenting and post-separation parenting course, as well as other therapies (being dialectical behaviour therapy and acceptance and commitment therapy) as these were very helpful in helping people to manage their aggression and hostility so they can interact and manage conflictual situations more calmly. He also thought that the father should engage with his own psychologist to gain assistance in supporting the Court’s decisions and to ensure that he acted with the interests of the children in mind. He said he thought it a good thing that the father had done the following courses: Parenting for Men, Triple P Parenting, Circle of Security and Stress Management and Grief.
During the hearing in March 2017, the father relied upon evidence given by Mr H, a clinical psychologist. He prepared two reports;[33] the latter arose out of interviews conducted on 2 May 2015. He assessed the father as being a low risk of sexually offending against the children. In arriving at this conclusion, Mr H proceeded on the basis that there was no evidence during the 12 months before the 2 May 2015 interview to suggest that the father had used sex with adult females and/or children in a pattern of coping with negative emotional arousal.
[33] Affidavits filed 21 September 2012 and 25 January 2017.
Mr H readily accepted that, as was the case with his earlier report,[34] a significant limitation of his assessment was that it relied upon the accuracy of the information provided by the father during interview; given the findings about the father’s veracity expressed in the 2014 Reasons,[35] it was ultimately submitted that this was particularly problematic in this case.
[34] Reasons for Judgment delivered 9 April 2014 at [201], [202].
[35] Reasons for Judgment delivered 9 April 2014 at [22]-[31].
Whilst I accept that any report – including Mr H’s – is only as good as the data on which the opinions expressed within it rely, there is no evidence to suggest that, since the April 2013 hearing concluded, the father has inappropriately engaged with adult females or children.
I accept that, when Mr Zawadzki spoke with Mr WW in early 2017 as part of the process for the preparation of Mr WW’s 21 January 2017 report,[36] he told him that he had been verbally and physically abused by the father during his childhood; he said the father often called him names, was generally ‘a bully’, an ‘evil person’ and ‘sadistic.’ His position then was that he thought the children should live with him so he could protect them from having traumatic childhood experiences similar to his own as, in essence, he thought he had been harmed by his frequent and unsupervised exposure to his father.
[36] Affidavit of Mr WW filed 22 February 2017.
Mr Zawadzki also told Mr WW that he remembered that, in 2003, his father beat his mother up: he took issue with the father’s contention that he slapped the mother and said she had suffered numerous injuries. I made findings about this incident in April 2014, as summarized in paragraph 30(p) above. Mr Zawadzki also told Mr WW that, save for this event, he did not remember any other incidents of physical violence beyond a push or his father grabbing his mother by the wrist; however, he described his father’s past behaviour as “seedy” and said he had often had anger outbursts and was easily frustrated.
When cross-examined in March 2017, Mr WW outlined that the findings expressed in the 2014 Reasons stood as “a fact”; he said he had approached his involvement in the matter from the perspective of looking to the situation as it was when he first interviewed the children, Mr Zawadzki and the father. He said it seemed to him from those interviews that the children seemed to enjoy their time with their father. He also said that, as he was unaware of any debilitating mental health or substance abuse problems or any current accusations of violence against the father, he queried whether there was sufficient evidence to warrant the continuation of supervision on an indefinite basis. He accepted, when cross-examined in March 2017, that, on the balance of probability, he did not believe that the father had sexually abused the children; he also noted that the Department made a positive finding about the allegations and that the Court had not made a clear finding. Mr WW said that, because there was no clear evidence that compelled him, he had put the allegations to one side because, in the absence of compelling evidence, he ‘sort of’ assumed that most fathers do not sexually abuse their children and worked from that premise.
During his March 2017 cross-examination, Mr WW also said that, as the children aged, they would develop an increased protective capacity; they would also develop the capacity to speak about their experiences. Given this, he then recommended that supervision of their time with their father cease after the expiration of 12 months (that is, by about March 2018) and that consideration be given to having Ms M present during visits for a subsequent 12 months. He said he thought that these periods of time might assist the parties to accept whatever decision was made and allow the children’s capabilities (in terms of the development of protective skills) to be enhanced. Despite arriving at these recommendations, Mr WW also said that he remained a little concerned that, as the children age, there was the prospect that they might start to exercise some independence, not be as mindful of their father’s attempts to manage their behaviour and that the father might tend to react to this in an authoritarian way.
Mr WW also explained that the concern he expressed in the January 2017 report – namely, that there was a risk that unsupervised time between the father and the children would provide the father the opportunity to undermine their confidence in Mr Zawadzki’s care of them – was based on: the father’s proposal (as it then was) that, if the children lived with him, their time with Mr Zawadzki should be supervised; the father’s dissatisfaction that Mr Zawadzki and the children maintained an ongoing relationship with Ms U (a friend of the late mother); and the possibility that the father’s multiple pre-March 2017 notifications to the Department were a manifestation of frustration and angst, which he might struggle to contain during unsupervised time with the children. He explained that the combination of these matters made him a little concerned that the father would struggle to support Mr Zawadzki in his role as the children’s primary care-provider.
Despite such concern, Mr WW said, in March 2017, that he considered the children’s relationship with their father to be an important one; he opined that if his concern about the possibility that the father might undermine the children’s relationship with Mr Zawadzki was put to one side, the children would probably be quite safe to spend unsupervised time with him. Such opinion obviously rested significantly on the belief noted in paragraph [52] above. He also opined that Ms M’s presence during the children’s time with their father may assist or be the equivalent of providing oversight, as he thought her presence might help the father contain any frustration or impatience he might experience when the children were in his care; in saying this, Mr WW also said, though, that he was not sure about whether Ms M would “stand up to” the father or intervene if he did not do the right thing.
Mr WW interviewed the father, Ms M, the children and Mr Zawadzki on 31 July 2019. The contents of his 2019 report[37] complement the contents of his January 2017 report.
[37] Annexure “A” (dated 2 August 2019), affidavit of Mr WW filed 12 August 2019.
I accept Mr WW’s evidence in his 2019 report to the effect that it is clear that the children are of an age and developmental stage where it can be anticipated that they have some protective capacity; I also accept that it is much more likely than not that they have the ability to articulate their experiences clearly. I note that Mr WW was unconvinced that the children’s relationship with their father should continue to be restricted by continuing the imposition of supervision over their time together. Such opinion again clearly rests on the belief noted in paragraph [52] above and Mr WW said, when cross-examined, that if the Court concluded that the children would now be at an unacceptable risk of being sexually abused by their father if their time with him was unsupervised, he would in fact recommend that they not spend any further time with him at all.
Further discussion and conclusions about whether unsupervised time with their father would place the children at an unacceptable risk of harm
I am not now persuaded that the children remain at an unacceptable risk of being exposed to inappropriate intimate behaviour by their father if their future time with him is unsupervised.
I have arrived at this conclusion given the nature of the behaviours considered in the 2014 Reasons, the time that has passed since then and the consequent significant difference in the children’s ages since mid-February 2011 (when they last spent unsupervised time with their father), their consequent increased maturity, resilience and capability, their consequent ability to report about any behaviour by their father that may make them feel uncomfortable, their likely much stronger relationship with Mr Zawadzki in whom they can confide, the evidence given by Dr YY (which was not given during the hearing in April 2013), the observations made by the Contact Centre of the father’s behaviours over the lengthy period of time the children’s time with him has been supervised, the continued presence of Ms M as his partner and the father’s completion of the various courses to which reference has earlier been made. I have also taken into account that, during his evidence in March 2017, Mr Zawadzki said that the children’s behaviours when they returned from spending unsupervised time with the father was pretty much the same as it had been when they returned from spending supervised time with him, although I also accept that limited reliance that can properly be placed on such observations given the small number of visits.
I accept the submissions made by Counsel for the father to the effect that the evidence now persuades of the conclusion that the father is now a very different person vis-à-vis his emotional regulation than the person the evidence considered at the March/April 2013 trial established him to have previously been. I note that, despite these proceedings having remained unfinalised since the conclusion of the March 2017 tranche of the hearing, there is no evidence to suggest that there has been any reported domestic violence between the father and Ms M; I note that there was no evidence before me during the March 2017 tranche of the proceedings to suggest that there had been occurrences of domestic violence between the father and Ms M.
Given the ongoing observations made by the supervisors at the Contact Centre (as discussed below), I accept the father’s evidence to the effect that the courses he has done have helped him to learn to be a more patient person and accept things which he would not previously have accepted. I accept he has undertaken work that was less stressful for him; I accept that he has continued to attend on a psychologist to have the opportunity to express his feelings. I accept the father’s evidence to the effect that, during his participation in the various courses he has completed, he met people whose circumstances matched or were worse than his own and, from that, he has learned to appreciate the positive things in his life.
As noted during the March 2017 tranche of the proceedings, I consider that, in the answers he gave in responding to Mr Zawadzki’s questions about what he had learned from the various courses which he has completed, the father demonstrated some insight, reflection and identification of the issues which had contributed to the circumstances in which he has found himself and his role in the same.
I also note and accept the contents of the reported observations of the father’s behaviours during supervised time – particularly since January 2017. These reports contain no suggestion that the father has acted impulsively or aggressively during his time with the children (save, perhaps, for the occasion on which Mr Zawadzki failed to attend with the children and it appears that the father verbally expressed his frustration, in the absence of the children, about missing time with the children and Mr Zawadzki also verbally expressed frustration – I infer, in the presence of the children – when contacted by a Contact Centre worker); there is no suggestion that the father has manifested marked irritability and/or frustration, or that he has been seen to have had difficulty controlling his anger or that he has manifested dysregulated behaviours or that he spoken inappropriately to the children.
I consider that the reports of the children’s supervised time with their father also establish that he has consistently regulated his emotions appropriately and has demonstrated better emotional control than previously. I consider that the reported observations of the father’s behaviours during supervised time with the children establishes that he has repeatedly appropriately comforted them; he has, on occasions, accepted information from them, encouraged them and expressed his affection for them to them. He has also repeatedly interacted well with them and has consistently provided emotional nurturance to them: for example, by speaking positively to B when he has been concerned about his weight, by listening to the children when they have complained to him about being bullied and by making suggestions to them about the way in which they might deal with this. I also accept that, when challenged by their behaviours, he has maintained relative equilibrium – there is no report of him losing his temper with the children when they have been oppositional toward him, including more recently when B mocked his accent or, on another occasion, when B was described by the supervisor as being dismissive, disagreeable, sarcastic and negative; rather, on occasions, the father has diverted the children from their squabbling or has continued to firmly, but appropriately, insist that they follow his appropriate instruction and management. The observations of the father’s behaviour during supervised time with the children persuades me that he certainly appears to have improved his self-regulation.
Given that there is no record of the father making any adverse comment about Mr Zawadzki to the children during their supervised time together (particularly since January 2017), I consider that he has demonstrated that he has the capacity to refrain from denigrating Mr Zawadzki or his care of the children to them. Whilst I obviously accept that, on the objective evidence available to the Court, this capacity to regulate the expression of his views and/or feelings has only been put into effect under supervision (which first started in about mid-February 2011), I think it more likely than not that the fact of having to restrain, over such a lengthy period of time, any expression of any frustration and/or anger that he may have felt means that it is more likely than not that the father has developed the capacity to restrain himself from inappropriately expressing his frustration and/or anger and to refrain from saying anything negative about Mr Zawadzki to the children.
I accept that the stressors associated with spending time with children for relatively short periods of time under supervision are likely very different to the stressors of caring for children for longer periods of time. However, the notes of the supervised visits establish that, save for occasionally helping to take photographs and reinforcing positive comments the father had made about B’s concerns about his weight, the supervisors left the father (and Ms M when she was present) to manage the children’s behaviours. They did so appropriately.
Additionally, I think it highly likely that having to manage the children’s behaviours whilst knowing that every comment or reaction was being recorded for the purpose of being reported to the Court is attended with its own significant stressors: that the father has been able, over such a long period of time, to act toward the children as the Contact Centre notes record that he has persuades me that his capacity to manage stressful situations has likely significantly improved from the capacity that existed before the March/April 2013 trial.
I accept that a move to unsupervised time between the children and their father carries with it the risk that the father may make comments to them that somehow undermines or destabilises their sense of security in Mr Zawadzki’s care of them. I also note and accept Mr WW’s evidence to the effect that it would be distressing for the children to be told that Mr Zawadzki has harmed or neglected them. I also accept Mr WW’s assessment that the children’s age, resilience and loyalty to and confidence in Mr Zawadzki’s care of them to date makes it more likely that the risk of destabilisation is minimised.
In addition, given that the children have lived with Mr Zawadzki and been in his primary care since 2014 and have spent only relatively limited supervised time with their father since mid-February 2011, I think it much more likely than not that the real risk associated with the father making denigrating comments about Mr Zawadzki to the children would be to his (the father’s) relationship with them.
I reach this conclusion because, given Mr Zawadzki’s role in their lives following the death of their mother, I think it much more likely than not that the children’s primary loyalty and allegiance is to him rather than to their father. In such circumstances, I think it much more likely than not that any adverse comments or unwarranted criticisms expressed by the father to the children about the way in which Mr Zawadzki has cared for them would, more likely than not, be met with a reaction adverse to their father and demonstrative of loyalty to and support for Mr Zawadzki.
Given the children’s lived experience of being cared for by Mr Zawadzki, I think it more likely than not that any critical comments the father might make to the children about Mr Zawadzki would likely also be met by resistance; the risk associated with the father making such comments is, therefore, to his relationship with the children and not to their relationships with Mr Zawadzki. That is, it seems to me that, if the father criticises Mr Zawadzki directly to the children, he is likely to run the very real risk that they will support Mr Zawadzki ahead of him. I think it much more likely than not that if, by his future words or actions, the father “forces” the children to choose between maintaining a relationship with Mr Zawadzki or maintaining a relationship with him, they will choose their relationships with Mr Zawadzki.
Similarly, I think it much more likely than not that the risk associated with the father making any negative or critical comments to the children about their deceased mother would be that this would invite them to react adversely to him and, potentially, negatively impact on their relationships with him.
I accept that another risk associated with the children’s time with their father becoming unsupervised is that he might expose them to his beliefs about past events and thereby provide them with information from which it appears they have, to date, been protected. However, given that this was, I conclude, the reason the father previously advanced for previously seeking that Mr Zawadzki have only supervised time with the children (if the children lived with him), it seems to me to be unlikely that the father would raise such issues himself.
Counsel for Mr Zawadzki raised that a further risk to the children, if their time with their father was unsupervised, arose because of the father’s capacity to persuade his treating psychologist to breach his ethical duty and become an advocate for him during the 2013 trial: it was advanced that, given this prowess, there was a risk that the children would not be able to withstand any attempts by the father to, for example, convince them that Mr Zawadzki had sexually abused them. Given the limitations in the children’s interactions with their father since about mid-February 2011 and what I consider to be their primary loyalty to Mr Zawadzki, I am not persuaded that it is likely that the father would be able to convince these children, at their ages and with their lived experience of Mr Zawadzki's care of them, to believe something adverse of him. For the same reasons, I also think it unlikely that the father would be able to persuade the children not to speak with Mr Zawadzki about any issues they might have whilst in his (the father’s) care.
These conclusion are strengthened by the fact that, on occasions during their supervised time with their father since January 2017, the children have chosen not to follow his directions and that, for the reasons expressed later in these Reasons, I have concluded that it is in their best interests to remain living primarily with Mr Zawadzki. Consequently, I am not persuaded that such asserted risks are of such magnitude to persuade of the continuation of supervision over the children’s time with the father.
I simply am not persuaded that, vis-à-vis the children in the circumstances which pertain, the father has the Svengali-like qualities which inferentially underpin this aspect of the submissions made by Counsel for Mr Zawadzki.
Counsel who appeared for the Independent Children’s Lawyer during the March 2017 tranche of the proceedings submitted that a further risk associated with the children spending unsupervised time with the father is that, by his persistent complaints about Mr Zawadzki’s care of the children (which it was submitted had been made without sufficient foundation), the father may expose them to the possible consequent destabilisation of their exiting care arrangements. As I noted during exchange then, the imposition of supervision over the children’s time with their father had not prevented him from making various complaints about Mr Zawadzki’s care of the children to the Department of Child Safety, Youth and Women (the Department) before the March 2017 hearing. That is, this identified risk was not ameliorated by the imposition of supervision over the children’s time with their father.
I also note that Mr WW encouraged the father to step back from his focus, consider the manner in which the children spoke about their brother and the care he had provided to them and stop focusing on things Mr Zawadzki had done when he was a 15 year old boy. These suggestions seem to me to remain relevant.
Mr WW reported that, when he spoke with nearly 13 year old B in July 2019, the child told him that he generally liked school; he said that he and C had regular chores they did in their home for which they received pocket money; he also confirmed that he spent time with his father every second weekend and described these visits as “good” but annoying. Given the length of time over which the children have spent supervised time with their father and the limitations that this has imposed on their ability to engage in activities with him, I think it more likely than not that such comment is reflective of frustration and boredom; he also said they often went to the park and did “the same thing over and over again”.
Given B’s age and the period of time over which the children’s time with their father has been supervised, I am not remotely surprised by his comment to Mr WW in this respect. I am not persuaded that his expressed annoyance is likely to be about the interactions with his father per se, as opposed to a reaction to the restrictions placed upon their interactions by the imposition of supervision over their time together.
B described his father to Mr WW as generally “okay”; however he also said he could be “annoying” and suggested he could be less tense; he thought it more appropriate for his father to only telephone them on the weeks when they would be seeing each other. When asked whether he had ever been grabbed forcefully by anyone on his upper arm, he said that he had not.
Mr WW reported that, when he spoke with nearly 11 year old C in July 2019, the child said that he liked school; when asked about breaking his arm, he said that this had occurred at school when he was in year three and jumped off some stairs and accidentally hit a wall: he said his brother had collected him from school and taken him to the hospital. C described his visits with his father as “all right” but said that he thought there was no point in his father telephoning them on weeks when they would not be seeing each other – he said that, during their telephone conversations, his father just spoke about “random stuff”, which Mr WW concluded were topics about which he (C) was disinterested.
C also told Mr WW that, as he was used to the supervision of his time with his father, he would prefer that to continue, albeit that he would rather see his father once every three or four weeks instead of once per fortnight.
I accept the thrust of the submissions, albeit made to urge a result other than that I have concluded is in the children’s best interests to the effect that such comment is more likely to be the consequence of participating in supervised time (with its attendant limitations) for such a long period of time than a reflection of issues with the father per se.
I am buttressed in this conclusion by Mr WW’s reported observations of the interactions between the children, their father and Ms M in July 2019: he said, and I accept, the boys were relaxed and appropriately interactive; all four people chatted as they played and engaged in other activities and, from his perspective, there was nothing remarkable in the observed interactions.
I note that, when asked during his cross-examination how he thought the children would react if they were told that their time with their father would be unsupervised, Mr Zawadzki said, in essence, that he thought they would just go; he certainly did not say that he thought they would suffer any adverse reaction from starting to spend unsupervised time with their father. He also said that he did not think he would have to give the children an explanation about why they would be seeing their father on an unsupervised basis and that, if they were just told that that was the case, they would not question it. He also said that, as they had previously had a few unsupervised visits with the father, he did not think unsupervised time was completely alien to them.
Whilst I accept that a change to unsupervised time with the father will be a big change for the children, Mr Zawadzki’s assessment of their likely reaction to being told of this change suggests that it is unlikely that such change will unduly upset them or cause them long-lasting distress or anxiety, especially if the father continues to relate to them as he has during their supervised time together.
This is not the conclusion I reach about the prospect of a change to their primary living arrangements; I consider that such a change now would likely completely destabilise the children.
During his cross-examination in March 2017, Dr YY said, in essence, that, given the children had experienced tremendous loss, which included the death of their mother and the loss of their father (in the sense that their time with him had occurred only on a supervised basis), Mr Zawadzki was the person whom had been their constant; given this, he felt that their security was likely tied up in Mr Zawadzki; he felt that Mr Zawadzki was the children’s “rock”. Dr YY assessed that the children’s next strongest attachment (other than that which they had to their late mother) was to Mr Zawadzki and that, given this, to “lose” him as their primary carer would be a major disruption to them and would be like losing their mother again.
Dr YY also said, in March 2017 that such time had passed that it would then have been almost an experiment or taking a risk to remove them from Mr Zawadzki’s primary care to place them in the care of their father. Given his evidence and Mr WW’s assessment that there is no nett benefit to the children of being required to undergo such a change, I am not persuaded that it is in the children’s best interests to cease to live primarily with Mr Zawadzki.
Mr Zawadzki, his attitude to the father’s involvement in the children’s lives
I accept that Dr YY’s December 2015 report contains his assessment of Mr Zawadzki as a very capable young man whom, although then only 21 years of age, was mature for his years and seemingly capable of continuing to care for the children in a parental role if required. The later evidence supports this historic assessment.
I accept that, on an occasion outside the Court building, there was a verbal confrontation between Mr Zawadzki and Ms M; I accept that the children were present whilst Mr Zawadzki asked Ms M why she was taking photographs of them and why she could not just leave them alone. I think it highly likely that their presence at this exchange would have left the children with little doubt about the strained nature of the relationship between the father’s household and Mr Zawadzki. Despite this, their supervised time has proceeded well.
Mr Zawadzki holds the view that the father has mounted a tireless campaign against him – manifested by making false complaints to the Department about his care of the children, and making negative comments about a family friend (Ms U) in front of the children. As already discussed the last complaint by the father to the Department occurred in December 2017. Whilst Mr Zawadzki’s evidence included specific reference to behaviours by the father which he alleged were angry, aggressive, intimidatory and denigrating of him and family friends to the children, such complaints related to December 2016.
When he spoke with Mr WW in early 2017, Mr Zawadzki said he was somewhat scared of his father, as the father had frequently driven past his house; he said that his father did not care about him; he said that he thought that the father wanted the children to live with him because that would enable him to access/control the mother’s estate (which the father said he thought might be in excess of $2.5M but which Mr Zawadzki stated was nothing like that figure).
When cross-examined in March 2017, Mr Zawadzki said, in the context of considering that, by then, orders for supervision of the children’s time with their father had been in operation for almost three years that he most definitely accepted that the father had a part to play in the children’s lives. He then proposed a continuation of the supervision over the children’s time with their father. However, he refuted any suggestion that it would be beneficial for there to be an exchange of ideas about parenting matters between himself and the father on the basis that, from his perspective, he could guarantee that the ideas his father would put forward were not going to be serious or logical or based in reality; he simply did not want to entertain the idea that his father could advise him about anything. He also said he could not say anything that was good about the father as a father and that he preferred not to encounter him in public.
Save for a comment made by C during supervised time in October 2017 – to the effect that, after the father had noticed that he had hurt his foot, the child told him that he had just hurt it and he (the father) did not have to go to Court and talk about it and that it was fine and his father should not worry – there is nothing in the notes from the Contact Centre of the supervised time between the children and their father since January 2017 to suggest that they have been in any way exposed to Mr Zawadzki’s thoughts about their father’s actions and reactions to learning things about their health and/or presentation. Even with this comment, I cannot be confident that it had its source in Mr Zawadzki, as it may well have had its origin in the children earlier speaking with Departmental officers as a consequence of an earlier report by the father to the Department.
When interviewed by Mr WW in July 2019, Mr Zawadzki said that he realised that supervision of the children’s time with their father could not continue indefinitely; he said he did not particularly oppose the children maintaining ongoing relationships with their father, but wanted his brothers to be a bit older than they currently are before supervision of their time with their father ceased. He said, when cross-examined, that, whilst it would be okay if the children’s time with their father stopped, he had not proffered this as an alternative because he did not think it a realistic prospect.
When cross-examined, Mr Zawadzki said that he would comply with an order for the children to spend unsupervised time with his father, although he would not support such an order because he did not believe that it would be the right decision. When asked how he would conceal his absence of support for such an arrangement from the children, Mr Zawadzki said that he would do that in the same way that he has not shown them that he does not support a lot of the things which have happened over the years: by not saying things he otherwise might. As already noted, I accept his evidence in this respect.
The father’s attitude and behaviour
I accept that Ms U, a friend of the children’s mother, said that in either 2013 or 2014, the father had behaved toward her at the post office in a manner she felt was angry and intimidatory; she said he had told others that she had accused him of being a paedophile. She also said, when cross-examined in March 2017, that, despite the father’s behaviour toward her, she was not afraid of the father but felt that his behaviour had made her uncomfortable. She also said, when cross-examined by the father, that she believed that he had done something to the children. She said that she did not speak to the children about their father but, if the children asked her a question about him, she answered it in a positive light. The children’s observed behaviours with their father support this latter contention.
I accept the thrust of the submission made by Counsel for the Independent Children’s Lawyer in March 2017 to the effect that I should accept the explanation given by the father in relation to the allegation that he had been stalking Mr Zawadzki and that I should not be persuaded that this was the case. Further, as remarked upon then, I also consider that much of the evidence given by Mr Zawadzki and Ms U about the father’s behaviours toward them since 2014 to be more demonstrative of the attitudinal and relationship issues between them; I am not persuaded that in acting as he did at such times, the father acted aggressively. If I am wrong in this conclusion, there is no evidence before me to suggest that the father has continued to engage in such behaviour toward either Mr Zawadzki or Ms U.
Whilst the father was criticised for seeking orders that Mr Zawadzki’s time with the children be supervised if they lived with him, I note that Counsel who appeared for the Independent Children’s Lawyer at the March 2017 tranche of the proceedings submitted that the father seemed to honestly hold the view that supervision was needed in order to prevent Mr Zawadzki from telling the boys information that would undermine their self-esteem. On balance, I am not persuaded that in seeking the orders that he did at that time, the father was acting retributively.
The father raised concerns about the manner in which Mr Zawadzki has managed B’s skin lesion over a number of years. When Mr Zawadzki was cross-examined, he said that he had obtained information from a chemist multiple times about ointments to apply and had applied the same; however, when these did not rectify the problem, he did not take B to see a doctor or a skin specialist because, it seems, the condition fluctuates and involves a patch of skin about two cm across and does not seem to trouble B. Notwithstanding Mr Zawadzki’s evidence about the impact on B of this medical condition, it is clear that it is recurrent. Given Mr Zawadzki’s evidence about the way in which he has managed this recurrent medical issue, I am not persuaded that the father was malicious in expressing the concerns that he has about this issue.
Similarly, whilst Mr Zawadzki was critical of the father for raising issues about the children’s comments to him about being bullied at school, he agreed, when cross-examined, that the children had told him a bit about that topic, that he did not pass any information about it on to the father and that he had not addressed it in his most recent affidavit, other than to outline that he does not like that the father continues to raise, in his affidavits, his concerns about what was being done about the children’s complaints. Given that Mr Zawadzki confirmed that the children had raised their concerns about bullying with him, I am not persuaded that the father acted maliciously when he raised his concerns about what was being done to address their complaints to him about the same issue.
I also note and accept Mr WW’s evidence that the records of the children’s supervised time with their father contains no comment by him to suggest that he had ever “sailed close to the wind” in terms of making inappropriate comments to the children; I also note and think there is some weight in Mr WW’s opinion that, where people have a tendency to transgress in terms of making inappropriate comments to children, such behaviour is often seen even during supervised time – given the large number of supervised visits over many years, I think it even more likely that any such tendency would be observed; as noted earlier, records (particularly from January 2017 onward) are simply devoid of a recording that the father made any comments adverse to Mr Zawadzki.
Having interviewed the father in July 2019 Mr WW opined that he appeared to have established some stability in his life but still presented as an anxious and vulnerable man who continued to grieve for his relationships with each of his children. As Mr WW did, I accept that the father places very significant value on his relationships with the children; I also accept without hesitation that he has demonstrated an ongoing commitment to continued participation in the children’s lives. I also accept that he is genuine in his wish to reconcile his relationship with his son, Mr Zawadzki.
I echo Mr WW’s evidence to the effect that it would assist the children in the development of their relationships with their father if he could tell them that Mr Zawadzki was doing a good job looking after them and he was proud of him and that the care arrangements seemed to be working.
I accept, in essence, that many of the reports made to the Department by the father of his concerns about the children’s presentation and the care provided to them by Mr Zawadzki need to be assessed in the context of the absence of any communication at all between Mr Zawadzki and the father; I think such circumstances likely provided fertile ground for the father’s concerns, especially given that this meant that there was no way that the father could raise his concerns directly with Mr Zawadzki and receive information from him about the appropriate context within which he should assess the children’s comments to him.
I also note that, when cross-examined about his concerns about the children changing schools, the father said that, as he then knew that the reason for this was that Mr Zawadzki had changed residences, he understood why the change had occurred. Given that it is clear that Mr Zawadzki did not tell the father about his intention to change the children’s schools – despite the existence of an interim order requiring him to convey such information to the father – I do not consider that the father acted unreasonably or maliciously in raising concerns about this.
The relationship between Mr Zawadzki and the father
Mr Zawadzki has consistently and repeatedly expressed his view that he does not want to have an ongoing relationship with his father; he has consistently said that he believes that the father previously physically and emotionally harmed the children; he has also expressed his view that he is fearful that it will be detrimental for the children if the father has an ongoing involvement in their lives. When cross-examined in March 2017, he said that he was unable to talk with his father and had not communicated with him by email despite having his email address. He agreed with the proposition that the absence of a relationship between them had been pretty constant since he was about 16 or 17 years of age.
Whilst he said in March 2017 that he definitely saw the possibility of there being a “business-like” relationship between himself and his father where they could have relatively smooth communication about the children (so that if he had concerns about something after the children spent time with their father, he could just write that in an email for his father to address), the reality is that there has been no communication from Mr Zawadzki to the father since then. This was despite his evidence being that he regarded email as providing the scope for them to engage in the type of communication he had in mind: he said in March 2017 that he would email the father if there was some significant issue about which he needed to be made aware – for example, major medical issues and/or if something serious happened with the children such that police attended at their school or “just any sort of emergencies” that the father had to be told of, or if there was anything that the children wanted him to pass on to the father; or if there were issues at the children’s schools (such as serious behavioural issues or real problems with grades) that were something that his father would be able to help the children with within their supervised time with him or were things that he needed to be aware of, he would have no issue in directing communication to his father.
Of course, later evidence makes it clear that, despite his own earlier evidence, Mr Zawadzki did not email the father about the children’s change of school or positively act to inform him of the same in any way; rather, he left it to the children to tell him about this during their supervised time together. Whilst he said, when cross-examined about this most recently, that he had not realised that the term of the operative parenting order meant that he had to do something positively when he knew the children had told the father about their prospective change of school, I retain some residual doubt about the complete veracity of his response in light of his earlier evidence and the clear terms of the operative order which compelled him to act.
Further, Mr Zawadzki’s earlier evidence that his real opposition was to being required to communicate with the father, as opposed to sharing information with him, (and he drew a distinction between these two styles of communication) does not seem to me to have been borne out by his later actions vis-à-vis the change to the children’s school. I think it much more likely than not that Mr Zawadzki’s failure to email his father about matters relevant to the children is a reflection of his view about the father’s attitudes to the whole situation and his conclusion that he does not feel like he can take anything his father says seriously.
I accept that there is no relationship between the father and Mr Zawadzki; I accept there is no evidence of any genuine capacity to communicate, cooperate or collaborate. I accept that Mr Zawadzki continues not to like the father and does not trust him. I can’t identify any prospect of there ever being a change in the current situation.
An appreciation of Mr Zawadzki’s view of the father can be seen in his answer, when asked in March 2017, if there was anything that the father could do to demonstrate to him that he had changed over time: he said that it would not take much – “just a change of personality or mind”.
Given Mr WW’s evidence to the effect that counselling interventions generally have a greater likelihood of success if both participants in the same are willing to participate and that Mr Zawadzki is not interested in going to counselling with the father, there is no point in making an order that they engage in counselling.
The orders which are now in the children’s best interests
The absence of communication between Mr Zawadzki and the father is such that it could not be thought to be in the children’s best interests for there to be an order that they have equal shared parental responsibility for most of the major long-term decisions relating to the children.
As already noted, I am not persuaded that it is in the children’s best interests that they now move to live primarily with their father; I accept Mr WW’s evidence to the effect that he was unable to identify any nett benefit to the children of being required to undertake the significant upheaval and disruption associated with such a move; I also consider that changing their primary care-provider at this time in their lives would have the very real risk of destroying the sense of stability they currently enjoy. I think it much more likely than not that the children have confidence in the care provided to them by Mr Zawadzki; it is much more likely than not that they are settled in his care and loyal to him. I have also taken into account the children’s wishes to remain living with Mr Zawadzki, as well as Mr WW’s earlier evidence to the effect that the children would benefit from security and predictability during the balance of their childhoods.
I am easily persuaded that the only order about the allocation of parental responsibility that is in the children’s best interests is in the manner set out in the Orders.
Mr WW recommended that the children continue to live with their brother but that they spend unsupervised time with their father on at least one occasion each week; he also recommended that there be a staged progression in the time they spend with their father such that it commence with visits of a few hours duration and culminate with overnight periods within a period of months. He also recommended that the father and children communicate by telephone at least weekly and that additional arrangements be made for special occasions such as Christmas, Father’s Day and the children’s birthdays.
When cross-examined most recently, Mr WW said that he did not have a firm view about those graduations in the children’s increasing time with their father that would be in their best interests; he thought there was “no magic” in the graduations and that increases were about the children’s comfort levels; he said that, if he had formed a view about a firm structure to be followed, his evidence would have contained the same. Whilst, when pressed further, he did not demur with the suggestion that the stages of increased time should proceed such that the children spend two hours of unsupervised time with their father at first, followed by period of three hours for the next month and then increasing to four and six hours and move to spending overnight time with him within a period of months, I think the stronger aspect of his evidence about this issue was that which he gave first: namely, that he had no firm view about the rate or duration of the progression of increasing time between the children and the father and that there is no magic in it.
I also note that, as I understood the thrust of his evidence, he said, in essence, that, given the children’s ages and developmental stages, a move to overnight time with the father within the next six months was not out of the range of appropriate graduations. I also note his evidence to the effect that change to the existing arguments between the father and the children should come slowly and incrementally as there is a risk that too much change too quickly might make the children feel anxious and unsafe; conversely, though, if their experience of their time with their father went well, that experience would likely work to make them feel safer and more secure in his care.
In arriving at my conclusion about the form of the orders for the children’s time with the father, I have considered the submissions made by Counsel for the Independent Children’s Lawyer and Mr Zawadzki and, in particular the submission that, if the children’s time with the father is to be unsupervised, such time should progress slowly. I have also considered the submissions made by Counsel for Mr Zawadzki to the effect that the children’s unsupervised time with their father should be restricted to that which occurs during day-time only, to allow them the opportunity to adapt to the change and that increases in the duration of the time should occur slowly in order to maximise the prospects of the new care regime succeeding. However, given Mr Zawadzki’s evidence that he will comply with orders and that, even if he does not support them, he will manage his lack of support for the same in the same way he has so far – namely, by not saying things he might otherwise say – I can see no persuasive reason to delay the implementation of the new unsupervised regime in the manner provided for in the orders.
Whilst Counsel for Mr Zawadzki submitted that if the Court concluded that the children would not be at an unacceptable risk of harm if their time with their father was now unsupervised, any unsupervised time between them and their father should be limited to day-time time only, I am not persuaded that there is any proper basis for the same; I consider it much more likely than not that, if the children are permitted to spend increasing periods of unsupervised time with their father (and Ms M) and that such time increases to encompass overnight time, they will be afforded the opportunity to continue to develop their relationships with their father.
I am not persuaded that it is appropriate or in the children’s best interests to make their overnight time with their father conditional upon him providing proof to Mr Zawadzki of his continued engagement with a therapist; I think such an order unsupported by the evidence and, even if it was, I consider the likelihood of it increasing the risk that Mr Zawadzki and the father would be engaged in further proceedings outweighs any benefit the children might obtain from such a requirement.
Having concluded, as outlined above, that I am not persuaded that the children will be at an unacceptable risk of harm if they now spend unsupervised time with their father and taking into account the positive reports of their supervised interactions with him (for example, since January 2017 but also earlier), their respective ages, their documented positive interactions with Ms M during supervised time, Mr WW’s evidence about there being no magic in the progression of graduated unsupervised time and the submissions made in relation to this issue, I have concluded that the orders set out at the commencement of these Reasons are in terms which achieve the balance of providing the children with sufficient time to adjust to the new regime but also address the very real risk that a continuation of restricted time will be the very thing that adversely impacts on their ability to continue to develop their relationships with their father.
I have also taken into account the submission that the orders should ensure that the father and Mr Zawadzki do not come into contact with each other and that changeovers should occur either from school or a Contact Centre. Whilst I accept that there may be some practical problems with changeovers occurring from school – especially for longer holiday periods – I consider that these difficulties are not of such magnitude as to warrant requiring the children to travel to a Contact Centre for the purpose of being collected by either Mr Zawadzki or the father. Further, the children are of an age where they can easily transition between the care of the father and Mr Zawadzki in a public place without the necessity of the adults being proximate to each other.
I note that Mr WW said that he did not get any hint from the children during their interaction with him that they thought that they might have been the victims of sexual abuse; I accept Mr Zawadzki’s evidence that he has not said anything to the children about this issue; I also accept that the father has not spoken with them about this issue. Given my conclusion that it is in the children’s best interests to spend unsupervised time with their father on an increasing basis, I consider that they are likely to be assisted in managing this change to have the opportunity to speak with Mr WW before such time occurs overnight so that he can speak with them about the importance of telling Mr Zawadzki (and the father) about any issues that concern them at school or home and about the importance of telling an adult (be it Mr Zawadzki or their father or both) if they are exposed to any behaviour by any person (be it another child or an adult) that makes them feel uncomfortable in any way. Given Mr Zawadzki’s evidence that he had the sense that the children feel comfortable talking to him about their time with their father, it may be that Mr WW’s information does little more than reinforce for them that they should feel free to tell him about what happens during their time with their father and, similarly, should feel free to tell their father what happens in their lives when in Mr Zawadzki’s care. Additionally, given the evidence about the children’s comments to their father during supervised visits about bullying, it may also assist them if Mr WW speaks generally with them about this topic also. Mr WW could also helpfully provide the children with age-appropriate answers to any questions they might have about the change to their care arrangements once they have had an opportunity to experience the same (noting, as I have elsewhere in these Reasons, Mr Zawadzki’s evidence about how he thought the children would cope with spending unsupervised time with their father).
Given that I think it clear that Mr Zawadzki has taken no steps at all to provide the father with any information about the children generally or about their medical issues more specifically – and his clear evidence that he did not think it important for him to gather information to deal with the issues the father had raised in affidavits filed in 2017 – I consider it is in the children’s best interests for there to be an order that Mr Zawadzki nominate a medical practice to be used as the children’s “usual” medical practice and that the father be required to take the children to that medical practice for any medical treatment, other than emergency treatment, they might need whilst in his care: in this way, both the father and Mr Zawadzki will be able to access information about the children’s health independently and without the need to communicate with each other or rely on each other to communicate.
That an order in this respect might be made was not a matter which was the subject of notice or discussion during the hearing; however, in the course of my deliberations about the conclusions I have reached about the children’s future care arrangements, and taking into account the reality of the likely future absence of communication between Mr Zawadzki and the father, I have concluded that such an order is in the children’s best interests. Given the absence of an opportunity to be heard about the terms of such an order, the parties will be afforded the opportunity to be heard further about its terms by a ‘liberty to apply’ order restricted to this aspect of the orders made today.
In formulating the orders as I have, I have also taken into account Dr YY’s evidence to the effect that, as a consequence of the fact that the developmental gap between them will narrow, he retained some concerns about how Mr Zawadzki would be able to manage the children when they are teenagers and his evidence that, if the father could support Mr Zawadzki in his role of providing primary care to the children and continue to have a healthy relationship with them, they could grow and learn to love him and develop a strong relationship with him which, in the long term, may be just as good as if he had assumed responsibility for their primary care.
I think it also appropriate to note specifically my acceptance of Mr WW’s evidence to the effect that, if the father is to progress his relationship with the children, he needs to accept, acknowledge and support Mr Zawadzki’s role in their lives and to resist the temptation continuously to look for fault. I also think it likely, whatever the terms of the order, that if the father is unable to do this, there is a very real prospect that the children may develop greater resistance to his participation in their lives.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 6 September 2019.
Associate:
Date: 6 September 2019
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Family Law
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Jurisdiction
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