Ziegler & Ziegler
[2022] FedCFamC1F 789
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ziegler & Ziegler [2022] FedCFamC1F 789
File number(s): DGC 3311 of 2018 Judgment of: MEAD J Date of judgment: 19 October 2022 Catchwords: FAMILY LAW – CHILDREN – With whom the children live and spend time – Best interests of the children – Children aged 10 and 7 at the time of trial – Where the mother seeks orders for sole parental responsibility and no time spending with the father – Where the father seeks orders for shared parental responsibility, the children to live with the mother and spend substantial and significant time with him – Where at the time of trial the children had not spent time with the father for three years – No meaningful relationship between the children and their father at the time of trial – Children opposed to spending time with the father – Mother and children are fearful of the father – Where the Court finds the mother and children’s fears are genuine – Where the Court finds the father has engaged in domestic violence (including coercive control) including post-separation – Where the Court places significant weight on the children’s views – Where the children are to live with the mother and spend no time with the father – Where orders are made enabling the father to communicate with the children by way of letters, cards and/or gifts Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA, 61DA(1), 61DA(2), 65DA(1), 65DA(2), 65DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5) Cases cited: Mazsorski & Albright (2007) 37 FamLR 518
McCall & Clark (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 286 Date of hearing: 30 May & 2 June 2022 Place: Adelaide Counsel for the Applicant: Ms Boyle Solicitor for the Applicant: Adelta Legal The Respondent: Litigant in person The Independent Children's Lawyer: Ms Olsson ORDERS
DGC 3311 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZIEGLER
Applicant
AND: MR ZIEGLER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MEAD J
DATE OF ORDER:
19 October 2022
THE COURT ORDERS THAT:
1.All previous parenting orders made herein be discharged.
2.The mother have sole parental responsibility for X born 2011 and Y born 2014.
3.The said children live with the mother.
4.There be no orders for the father to spend time with the said children.
5.The father be at liberty to communicate with the said children by way of sending letters, cards and/or gifts to them on their birthdays and for special occasions, and that the mother use her best endeavours to have the children respond appropriately to the father in the event of receiving such greetings or gifts.
6.Within twenty-eight (28) days of the date of this order the mother advise the father in writing, forwarded to him by pre-paid post to R Street, Suburb S, South Australia, details of an address to which the father can forward the letters, cards and/or gifts referred to in paragraph 5 hereof, with the father to ensure that any letters, cards or gifts so forwarded to the children exhibit a return address to which any response of the children can be forwarded.
7.The father be restrained and an injunction is hereby granted restraining him from approaching within 100 metres of the mother and/or the said children, including their place of residence, school or childcare centre, sporting location or any place where the mother and the said children frequent.
8.The father and his servants or agents be restrained and an injunction is hereby granted restraining him or them from removing or attempting to remove the children X born 2011 (male) and Y born 2014 (female) or either of them from the Commonwealth of Australia.
9.The mother be at liberty to collect X’s and Y’s passports from the Adelaide Registry of the Federal Circuit and Family Court of Australia regardless of whether the said passports are current or expired.
10.The mother:
(a)inform the father of any serious illness or injuries sustained by X and/or Y whilst in her care together with particulars of any treatment required or received by the children or either of them; and
(b)provide to the father copies of the children’s end of year school reports,
by way of prepaid post to R Street, Suburb S, South Australia or such other postal address as advised in accordance with the terms of paragraph 6 of this order.
11.The order for the appointment of an Independent Children's Lawyer made herein be discharged.
12.All extant applications and responses filed herein be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ziegler & Ziegler has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction
This is a parenting matter. Proceedings were commenced by way of an Initiating Application filed by Ms Ziegler (“the mother”) in the Dandenong Registry of the Federal Circuit Court on 1 October 2018. Mr Ziegler (“the father”) filed a Response to that Application on 16 November 2018.
On the first return date the matter was transferred to the Adelaide Registry of that Court. It was listed before Judge Brown on 14 November 2018.
The matter remained in the Federal Circuit Court until transfer to the Family Court of Australia by order of Judge Brown of 13 December 2019.
The children the subject of the proceedings are X born 2011 (aged 10 years at the time of trial) and Y born 2014 (aged 7 years at the time of trial).
The parties are in dispute as to whether X and Y should spend time with their father and if so how much.
At trial the mother was aged 30 years and the father 43 years.
The parties married in mid-2009 and separated in the middle to latter part of August 2018.
In her trial affidavit the mother deposed to being employed in administration.
The father did not file a trial affidavit but in an affidavit filed by him on 26 May 2022 he described his usual occupation as painter.
As at the commencement of trial on 30 May 2022 the children had not communicated with or spent time with the father since 15 March 2019, save and except for X being observed with his father during the first family report process on or about 23 April 2019. Y refused to participate in that observed observation.
On 14 April 2021 the matter was listed for trial for five days commencing on 2 May 2022.
At the time the proceedings commenced in 2018 the father was represented by the law firm T Lawyers which firm continued as solicitor on file for the father until his new solicitors U Lawyers filed a Notice of Address for Service on his behalf on 9 March 2021.
On 14 October 2021 a third firm of solicitors, V Lawyers, filed a Notice of Address for Service on behalf of the father.
On 15 October 2021 trial directions were adjourned to 1 March 2022. An updating family report was ordered, noting that the author of the original report was no longer with the Court. The report was ordered to be available on or before 18 February 2022.
The family report was not released until 22 March 2022. The preparation of the report had been delayed as a result of the mother and one of the children contracting COVID‑19, resulting in delayed appointments.
At a directions hearing on 7 April 2022, after hearing submissions from the father’s solicitor Ms W, the Court noted that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) would apply to cross-examination at trial, and ordered that Ms W use her best endeavours to contact the Legal Services Commission to arrange for urgent implementation of the funding so as to avoid any delay of the trial.
On 14 April 2022 the Court made orders for the filing of trial affidavits and case outline documents in circumstances where there did not appear to be any impediments to compliance with that order.
On 27 April 2022 the father’s solicitor Ms W filed a Notice of Ceasing to Act.
In view of the imminence of the trial the Court called the matter on by telephone for directions on 27 April 2022. Ms W attended as a matter of courtesy to the Court but she sought the Court’s leave to withdraw, having received instructions from the father at 8.00 pm the previous evening to cease acting for him.
The Court granted that liberty and the husband thereafter represented himself. The Court vacated the trial date of 2 May 2022 and relisted the trial to commence at 10.00 am on 30 May 2022 to give the father time to instruct new solicitors in circumstances where the trial previously listed for that day had settled.
The Court made a further order deeming the father to be the applicant for the purposes of trial, noting that he had conceded the issue of the children’s place of residence in an Amended Response he had filed on 30 October 2020.
The Court extended the time for the father to file and serve his trial affidavits to 16 May 2022 and extended the mother’s time to file her trial affidavits to 23 May 2022. A further order permitted the father to give oral evidence at trial in response to the mother’s trial affidavit.
The father did not file a trial affidavit prior to the commencement of trial at 10.00 am on 30 May 2022.
The father did however file an Application in a Proceeding on his own behalf at 10.18 pm on Thursday 26 May 2022, sealed by the Court at 11.23 am on Friday 27 May 2022, seeking:
·an urgent listing prior to 30 May 2022;
·that the trial scheduled to commence on 30 May 2022 be vacated for a period of not less than six months;
·an order for reunification therapy for he and the children through the Z Contact Service or other service as agreed; and
·that thereafter the parties participate in family dispute resolution.
Contemporaneously with that Application the father filed an affidavit comprising some eight pages in support of his application to adjourn the trial.
The affidavit in support of his application to adjourn the trial primarily consisted of criticism of his most recent solicitor, Ms W, and various of her staff, as well as a complaint that he had not been represented since Ms W “withdrew” from the matter and that he had not been able to obtain further legal representation.[1]
[1] Father’s affidavit filed 26 May 2022 – paragraph 5.
In paragraph 11 of his affidavit he deposed to Ms AA, the author of the second family report before the Court, recommending he and the children participate in reunification therapy.
In paragraphs 12 and 13 he deposed to courses he had attended and annexed certificates of attendance at those courses. He also deposed to attendances upon Mr BB, Social Worker, and annexed a report of Mr BB dated 6 December 2019.
During submissions as to his adjournment application Mr Ziegler was unable to point to anywhere in the report of Ms AA where such a recommendation had been made, other than in circumstances where the Court had found clear, firm and accepted independent evidence of him having changed his ways.[2]
[2] Family report of Ms AA dated 21 March 2022 – paragraph 78.
By the time the father filed the application to adjourn the trial, proceedings had been on foot in the Court for three years and seven months.
For reasons given ex-tempore on 30 May 2022 the father’s Application in a Proceeding was dismissed and the trial commenced. The father was not permitted to adduce oral evidence at trial, having failed to comply with orders to do so by way of affidavit. The father did however have an Amended Response to Initiating Application before the Court, filed on 30 October 2020.
Mr Ziegler was present for the cross-examination of the mother by the Independent Children's Lawyer on 30 May 2022.
The provisions of s 102NA(2) of the Act prevented Mr Ziegler being able to personally cross‑examine the mother.
Due to the unavailability of the expert late in the morning of 30 May 2022 for the remainder of that day, the matter was adjourned to 10.00 am the following morning. At that time the Court was advised via the father’s sister that he had been taken to hospital sometime the previous night. The matter was further adjourned to 10.00 am on Thursday 2 June 2022 at which time the report writer, Ms AA, was available for cross-examination. The father attended at the adjourned time.
Ms AA was cross-examined by counsel for the mother, by the father and by the Independent Children's Lawyer. At the request of counsel Ms AA was called by the Court for cross-examination.
Background
The parties married in Country O in mid-2009. They had met less than two months earlier when the father was visiting Country O from Australia. At that time the mother had just turned 18 years of age and the father was aged 30 years.
The parties cohabited for approximately one month following upon their marriage before the father returned to Australia, with the mother moving to Australia some nine months later after the appropriate visa had been secured.
The parties separated on 28 August 2018.
It was the mother’s evidence as contained in her trial affidavit filed 25 May 2022 that:
·in mid-2018, at the surprise suggestion of the father that she go to Melbourne to visit her uncle to enable her to “have a break from fighting with him”, she agreed to do so, notwithstanding significant trepidation, on the basis of his offer to care for the children while she was away;
·that upon arrival in Melbourne she attempted to telephone the father to check on the children but ascertained the father had blocked her number on his telephone;
·that she ascertained the following day that X was not at school, nor was Y at childcare;
·that whilst the mother was in Melbourne the father obtained an Intervention Order against her naming he and both children as protected persons; and
·she was later charged with several breaches of that Order, allegedly as a result of her sending abusive and threatening text messages to the father from her mobile phone, which allegations she denied.
On 1 October 2018 the mother filed an Initiating Application in the Dandenong Registry of the then Federal Circuit Court of Australia seeking interim parenting orders on an ex-parte basis, as well as final orders.
On the interim basis she sought a Recovery Order for both children, and that she be permitted to return to South Australia to live with the children and resume living in the former matrimonial home at CC Street, Suburb B South Australia, pending settlement of the sale of the said property.
On a final basis she sought that the parties have equal shared parental responsibility for the children, that the children live with her in South Australia and that the father spend time and communicate with the children at times agreed or as ordered by the Court.
On 22 October 2018 the Court granted the mother leave to proceed with her application ex‑parte, made Airport Watch list orders in respect of both children preventing them from leaving the Commonwealth of Australia, granted the mother permission to “move back into and occupy the former matrimonial home situated at CC Street, Suburb B, South Australia” and transferred the matter to the Adelaide Registry of the then Federal Circuit Court and the docket of Judge Brown.[3]
[3] Order of Judge Burchardt made in the Dandenong Registry of the Federal Circuit Court.
At the first hearing before Judge Brown on 14 November 2018 his Honour ordered:
1.The father’s sister, [Ms A] deliver the children [X] (sic) born […] 2011 and [Y] born […] 2014 to the mother at the Family Law Courts Building, Childcare area, level 2, 3 Angas Street, Adelaide at 8:45am tomorrow, 15 November 2018 and thereafter the children spend time with the mother until 3:00pm.
2.The mother return the children to [Ms A] within the foyer of the [QQ Police Station] at 3:00pm on 15 November 2018 or such other location as agreed between [Ms A] (sic) and [Ms Ziegler].
3.The father is restrained and an injunction issue restraining him from being present at either of the handovers on 15 November 2018.
4.The handover at 8:45am on 15 November 2018 is to be subject to the supervision of either Family Consultant [Ms C] or [Dr D] and that pursuant to section 65L of the Family Law Act 1975 the consultant is to report back as to what happened at the handover.
5.Further consideration of the matter is adjourned to Friday, 16 November 2018 at 9:00am for directions.
On 15 November 2018, the father filed a Response through his then solicitor seeking an interim order for the children to live with him and spend time with the mother as agreed or as ordered, and final orders providing for the parties to share parental responsibility for X and Y, and for the children to live with him and spend time with the mother as agreed or ordered.
In accordance with the orders of Judge Brown of 14 November 2018, a Memorandum was prepared by Family Consultant Ms C dated 15 November 2018.
On 16 November 2018, against the backdrop of that Memorandum, Judge Brown ordered by consent that:
·the children live with the mother, with the father to deliver the children to her that day;
·the children spend time with their father during school terms on alternate weekends from Friday afternoon to Monday morning in one week and from the conclusion of school Thursday to the commencement of school Friday in the alternate week, and on a week-about basis during Christmas school holidays;
·handovers occur inside the Suburb DD Police Station;
·the parties be restrained from physically disciplining the children, exposing them to family violence or denigrating or criticising the other of them to or in the presence of the children;
·the father facilitate delivery of the children’s clothes, belongings and personal effects to the mother with the children that day; and
·the father provide the mother with a motor vehicle for her personal use within fourteen days.
His Honour further ordered the parties attend a Family Dispute Resolution Conference pursuant to s 11F of the Act.
On 21 January 2019 the mother filed an urgent application for a Recovery Order, alleging the father had withheld the children from her contrary to the order of 16 November 2018.
On 28 January 2019 the father filed a Response thereto seeking suspension of the parenting orders of 16 November 2018, for the children to live with him and spend supervised time with the mother, for a family assessment report to be prepared and for an Independent Children's Lawyer to be appointed.
On 29 January 2019 Judge Brown suspended the orders of 16 November 2018 and ordered that until further order the children live with the father and spend time with the mother as agreed between the parties, supervised by Mr M at the expense of the father’s parents. He also ordered the appointment of an Independent Children's Lawyer as a matter of urgency.
On 13 February 2019 a date was confirmed for the previously ordered s 11F Dispute Resolution event and there was a minor variation made to the parenting orders.
A Child Dispute Conference Memorandum to Court dated 19 February 2019 was before the Court at the time of the next hearing on 6 March 2019.
Under the heading of “FUTURE DIRECTIONS” Family Consultant Dr D noted the following issues of concern:
·the underlying dynamics and motivations in the dispute;
·issues of power and coercive control;
·questions as to the father’s agenda in the dispute;
·allegations raised by the father regarding serious physical and psychological abuse of the children remaining matters for evidence;
·such issues would be considered risk factors if verified;
·there did not appear to be a child protection history for the children prior to the parents’ separation;
·the mother’s allegations that the father’s allegations are based on false and misleading information;
·that such a scenario could call into question the father’s integrity and reliability in the dispute;
·that allegations of alienation are a matter for evidence; and
·that if the children have been alienated it constitutes a serious form of psychological abuse and would be considered a risk factor.
She recommended an urgent family assessment.
Interim argument was heard by Judge Brown on 6 March 2019. He reserved his decision to 15 March 2019 at 10.00 am and ordered the father to deliver the children to childcare in the Registry at 9.30 am that day.
On 15 March 2019 Judge Brown delivered his reasons. He ordered on an interim basis that the children live with their mother and that a family report be prepared. He restrained the father from interfering with the delivery of the children to the mother that day and attending at any place of education including preschool or kindergarten attended by the children during the period of the adjournment.
By Family Consultant Memorandum to Court dated 18 March 2019, Family Consultant Ms EE reported to the Court as to the handover of the children by the father to childcare at 9.30 am on 15 March 2019 and the later handover of the children to the mother by childcare staff following upon his Honour’s orders of 15 March 2019. In her Memorandum to the Court she reported that:
·both children, but particularly X, were expressing views of being frightened of their mother and not wanting to see her;
·having significant difficulty in persuading the father to leave the children in the childcare centre, having to firmly advise him on several occasions to leave the centre;
·both children eventually settling and engaging in activities after a period of about ten minutes;
·when the mother came to the childcare centre with the children’s uncle the children eventually settled happily with the mother and left happily with her, but that X told the Consultant that “if I look like I am happy, I am not” and that his mother hit and slapped him “all of the time”;
·his comments being made “in a relatively matter of fact way with little emotion”;[4] and
·the children leaving with their mother, happily smiling and laughing.
[4] Family Consultant Memorandum to Court dated 18 March 2019 – p 3.
Family Consultant Ms EE (Ms EE) also prepared the first substantive family report in the matter pursuant to Judge Brown’s order of 15 March 2019.
Under the heading “EVALUATION” in paragraphs 110 to 122 of the report she referred to significant issues of concern including:
·that if the mother was correct in believing that the father would go to whatever lengths he could to discredit her then serious concern should be held for the safety and wellbeing of the mother and the children;
·that complaints by X were different from his account of those complaints to the Family Consultant earlier, had a sense of being rehearsed and were made without any sense of emotion and not congruent with his affect;
·that observations between the father and X suggested significant concern that the father was placing the child under psychological pressure of an extreme nature, leading to the observation session being terminated; and
·that the father’s time with X in the observation session appeared to be a deliberate attempt to manoeuvre X for his own gains and agenda.
On 14 May 2019, shortly after the publication of the report, a consent order was made providing for:
·X and Y to live with the mother;
·the father to attend upon Mr BB of GG Counselling in relation to demonstrating insight into the needs of his children, for a period to be determined by Mr BB and at the conclusion of therapy the father obtain, file and serve a copy of the report prepared by Mr BB with the cost to be borne by the father noting Mr BB is to be provided with a copy of the family assessment report prepared by Ms EE dated 9 May 2019;
·the father to enrol in and complete the FF Program and Circle of Security Parenting Programs;
·the father to be restrained from approaching within 100 metres of the mother or the children including their place of residence, school or childcare centre, sporting location or any place where the mother and the children frequent;
·the mother to deliver the children’s passports up to the Adelaide Registry of the Court; and for
·both children to be placed on the Airport Watch list.
In the period from mid-2018 when the mother left the former matrimonial home to travel to Melbourne at the suggestion of the father and 14 May 2019 when the Court ordered the children live with the mother and restrained the father from approaching within 100 metres of the mother or the children, the father had withheld the children from the care of the mother:
·for a period of nearly twelve weeks until 16 November 2018; and
·for a further period of approximately eight weeks between 14 January 2019 and 15 March 2019.
During the second period the Court had, between 29 January 2019 and 15 March 2019, suspended the orders providing for the children to live with the mother, based on the father’s allegations and X’s expressed complaints of his mother’s treatment of her and Y.
On 13 December 2019, after granting the mother liberty to enrol both X and Y into the HH School at the beginning of the 2020 school year, Judge Brown transferred the matter to the then Family Court of Australia.
Competing proposals at trial
In her Amended Initiating Application filed 25 May 2022 the mother sought the following orders:
·that she have sole parental responsibility for X and Y;
·that the children live with her;
·that there be no orders for the father to spend time with the children;
·that the father be at liberty to send cards and gifts to the children on their birthdays and for special occasions;
·that she keep the father informed of any medical emergency in relation to either of the children as soon as is practicable; and
·that injunctions be granted restraining the father from attending at the children’s school and/or removing the children from their school.
In the Amended Response filed by the father on 30 October 2020 he sought the following orders:
·shared parental responsibility for the children with the mother;
·that the children live with the mother;
·that he spend time with X and Y in accordance with the terms of a stepped progress of time spending:
·commencing with supervised time at a children’s contact service for six visits;
·moving to unsupervised daytime visits fortnightly from 10.00 am to 2.00 pm;
·progressing to fortnightly overnight visits from Saturday morning until early Sunday afternoon;
·followed by fortnightly visits from Friday after school until 5.00 pm Sunday;
·time for half of each school holiday period; and
·special occasion time;
·reasonable communication with the children;
·that handovers occur at a shopping centre;
·specific issues orders with respect to the children’s health and education; and
·standard non-denigration orders.
In the Outline of Case Document filed on 29 May 2022 the Independent Children's Lawyer Ms Olsson did not specify the orders she would seek on behalf of the children at trial. Nevertheless, she set out in that document matters she considered relevant to determining the children’s best interests in accordance with the legislative pathway, namely:
·the allegations of family violence between the parties during their relationship;
·the lack of ability of the parties to effectively communicate for a number of years;
·her concern as to there being little evidence to satisfy the Court that the father had reflected on his previous behaviour or changed his patterns of behaviour;
·the children’s expressions to Family Consultant Ms AA that they did not feel safe with their father and had memories of strict discipline;
·that the father had not had a relationship with the children since March 2019;
·that there was no evidence before the Court that would give comfort in terms of the current circumstances of the father, his living arrangements and his view of how he would manage any form of return to time spending with the children;
·the father’s lack of empathy for the children when they were moved into the mother’s care in 2019 and as demonstrated to Mr BB during therapeutic sessions; and
·that there would need to be clear evidence of a sustained change of mindset and belief on the part of the father before reunification could be safely considered for the children.
The mother relied on her trial affidavit filed 25 May 2022.
The mother was cross-examined by the Independent Children's Lawyer.
The Independent Children's Lawyer relied on:
·Family Consultant Memorandum to Court dated 15 November 2018;
·Child Dispute Conference Memorandum to Court dated 19 February 2019;
·Reasons for Judgment of Judge Brown dated 15 March 2019;
·Family Consultant Memorandum to Court of Ms EE (Ms EE) dated 18 March 2019;
·Family report of Family Consultant Ms EE (Ms EE) dated 9 May 2019;
·Report of Mr BB dated 12 December 2019; and
·Family report of Regulation 7 Family Consultant Ms AA dated 21 March 2022.
Family Consultant Ms EE (Ms EE) was not required for cross-examination.
The Court called Regulation 7 Family Consultant Ms AA to enable cross-examination by counsel for the mother, the father and also by the Independent Children's Lawyer, particularly in the circumstances where the father was unrepresented.
Evidence at trial
In the mother’s trial affidavit in paragraphs 4 to 146 she deposed, inter alia, to:
·meeting the father in Country O in mid-2009 when he visited from Australia;
·at that time the father being 30 years old and she being 17 years old;
·the parties marrying and commencing cohabitation in mid-2009 in Country O;
·being happy to marry the father;
·the father returning to Australia a month after the marriage and she moving to Australia to live in mid-2010, living initially with the father’s parents before securing their own accommodation;
·separating from the father on 28 August 2018 and being divorced in early 2020;
·being the primary caregiver for both children from the time of their birth;
·attending to all of the children’s needs both in the home and outside including medical appointments and play activities and taking them to and from childcare;
·the father being gone from the home most days even when not working;
·the father not taking an active role in the care of the children and being reluctant to take any responsibility for them;
·the father seeking to control what she wore, where she could go and who she could speak to almost immediately upon marriage;
·the relationship not being a happy one from the time of the marriage;
·the father being physically and sexually abusive during the relationship;
·the father throwing objects and smashing plates in anger;
·the father ignoring her for days at a time if she upset him;
·the father being rough sexually including forcing her to have sex, on occasion tying her hands to prevent her resisting;
·the father taking video footage of her naked in the shower and threatening to publish it on the internet if she left or did not do as he wanted;
·the father not letting her work, have friends, take up hobbies or interests or go out at night or go to the gym;
·the father monitoring her mobile phone and reading text messages;
·being beholden to the father for money to buy food from the shops;
·being made to use her Centrelink funds to pay all the household bills and the father not working and providing money;
·the father cancelling her private health cover and putting accounts and bills in her name because of his bad payment history;
·the father smashing her mobile phone against a wall on their wedding day, demanding that she have sex with him that day, upon her refusal binding her hands with a telephone cord and forcing her to have sex with him causing bleeding from her vagina for the following two weeks;
·the father being charming and persuasive with her when with family and friends;
·having no support from the father’s family;
·the father checking her mobile telephone regularly and checking her text messages;
·the father verbally abusing her in Country O language including calling her “a slut” and “a whore” in that language;
·having an argument with the father about X’s eczema when the child was 2 months old causing the father to yell at her, smash a plate onto the kitchen floor and demand she apologise to his parents for asking his mother not to touch X on his face after having picked flowers from the garden which would irritate his eczema;
·the father not allowing her to have an epidural when giving birth to both children resulting in difficult and traumatic births;
·the father not showing interest in or helping with the children by looking after them, playing with them or interacting with them;
·the parties separating for a period of some two to three months in mid-2017 after having gone to Country O on holiday and having an argument;
·the father taking the child X from Country O and returning to Adelaide with him without her knowledge;
·leaving she and the child Y in Country O in his family’s home;
·her father returning to Adelaide with her in late 2017 because of concerns arising from the events in Country O;
·she and the father arguing all the time in the final year of their relationship;
·being concerned the father was tracking her movements;
·the father moving out of the former matrimonial home for approximately a month during mid-2017;
·the father persuading her to go to Melbourne without the children in mid-2018 (as previously referred to herein in some detail);
·the father asking her to give him her house keys as she was leaving for Melbourne;
·her initially refusing but then acquiescing when the father started to yell at her in front of the children;
·she and the children all crying as she was leaving for Melbourne;
·the father placing the parties’ home on the market for sale in late 2018;
·a caveat being placed on the home by a company owned by a friend of the father’s in late 2018;
·finding out about the house being listed for sale in late 2018;
·going to a post office in Melbourne to place a caveat on the house to stop the sale in late 2018;
·the father changing the number plates on her car in late 2018;
·the father blocking her on Facebook in late 2018;
·making a Statutory Declaration at the Suburb JJ Police Station in late 2018 that she was not in Adelaide for the sale of the parties’ two cars;
·obtaining an Interim Intervention Order naming she and both children as the protected persons and the father as the respondent under the Magistrates Court Family Violence Protection Act 2008 at the Magistrates Court in Suburb KK, Victoria, which was not confirmed as the mother returned to South Australia;
·the father being served with the Interim Intervention Order in late 2018;
·being advised in late 2018 that the former matrimonial home had been sold;
·the father removing the caveat she had placed on the property in late 2018 without her knowledge;
·returning to Adelaide with her uncle in late 2018;
·being reunited with the children in late 2018 for the first time since mid-2018;
·the father obtaining an Interim Intervention Order protecting he and the children with the mother being named as the defendant in late 2018;
·the father accusing her of abusing the children in early 2019 and withholding them from her;
·the mother charged with breaching the Interim Intervention Order the father obtained in late 2018;
·the mother being placed on bail for alleged breaching the Intervention Order;
·the mother being reported for an alleged aggravated assault on the father;
·the mother not being able to see the children unless supervised by Mr M;
·the Court ordering the children return to live with the mother in early 2019;
·the parties divorcing in early 2020;
·members of the paternal family including the father’s sister, mother and aunty trying to approach or contact her on various occasions during 2020, 2021 and 2022 including at the children’s sports games;
·the children not having spent any time with the father since early 2019;
·the children being settled at school and enjoying their studies;
·the characteristics and personalities of both children;
·continuing to be fearful of the father and not wishing for him to know her address;
·the father selling the family home, motor vehicles and other items of matrimonial personalty whilst she was in Melbourne; and
·instituting proceedings and the various orders made in those proceedings leading up to trial.
Although the father did not comply with orders of the Court as to the filing of a trial affidavit the Court did have before it the family reports prepared firstly by Family Consultant Ms EE (Ms EE) dated 9 May 2019 and secondly prepared by Regulation 7 Family Consultant Ms AA dated 21 March 2022. In addition, there were also the Family Consultant Memoranda to Court of 15 November 2018 and 19 February 2019 as well as 18 March 2019 and the Reasons for Judgment of Judge Brown of 15 March 2019.
The Child Dispute Conference Memorandum to Court of 19 February 2019, that of 18 March 2019, and the two family reports included extensive discussions between the Family Consultants and the father. Likewise, the report of Mr BB, the father’s witness, outlined the discussions between he and the father.
None of Family Consultant Ms C (Family Consultant Memorandum to Court dated 15 November 2018), Family Consultant Dr D (Child Dispute Conference Memorandum to Court dated 19 February 2019), or Family Consultant Ms EE (Ms EE) (Family Consultant Memorandum to Court dated 18 March 2019 and family report dated 9 May 2019) were required by the mother’s counsel for cross-examination and no request for them to be so available had been made by the father’s previous solicitors or the father prior to trial.
Mr BB’s report dated 6 December 2019 was filed on 12 December 2019 on behalf of the father, annexed to an affidavit of his then solicitor, Ms LL. He was not required for cross-examination by either the mother’s counsel or the Independent Children's Lawyer.
No objection was raised by the father as to the various Memoranda to Court, family reports or the report of Mr BB being relied on by the Independent Children's Lawyer.
Ms AA was cross-examined by the father, as well as by counsel for the mother and the Independent Children's Lawyer. The father did not challenge Ms AA’s record of his interview with her.
There was no communication between the father and Family Consultant Ms C when the Family Consultant observed handovers between the children and their mother facilitated by the father’s sister on 15 November 2018.
In the Child Dispute Conference Memorandum to Court of Family Consultant Dr D dated 19 February 2019, she recorded the father:
·denying the mother’s allegations of coercive controlling violence;
·counter alleging the mother was physically abusive, used excessive corporal punishment on the children and was verbally and emotionally abusive towards him and the children;
·telling the Consultant “I’m the one who suffered. No-one is understanding this”, “everyone believes her because she is a woman” and claiming “I have been bashed by her many times she used to slap, slap, slap me”;
·when asked about any drug and alcohol issues relating to the mother, the father responding “she is the mother of my kids. I kept it quiet. I kept it all to myself. I’ve done everything to make sure she’s happy”;
·saying the mother engaged in activities involving both legal and prohibited substances;
·when the Consultant noted to the father that such allegation had not been raised in the affidavit material to date, the father replying “I thought it didn’t matter. She’s only hurting herself”;
·when asked how often the mother allegedly used a prohibited substance, saying “occasionally, not every day, but many times”;
·going on to say he had not said anything because “in our culture if you do drugs its very, very bad – if people find out it gives us a bad name”;
·alleging that the mother was physically abusive towards the children;
·saying the mother would “beat” the children if they did not do as she said;
·alleging that the mother used to hit, kick and punch the children, lock them in cupboards and in the toilet and that “she’s always been abusive towards them”;
·not being able to elaborate or detail the claims except to say there were witnesses and that professionals were also concerned;
·admitting that there were no child protection investigations or issues regarding the children’s care raised by an independent third party such as school staff during the marriage;
·saying that “if she fixes herself up” he did not “mind every second weekend like she’s given me”;
·not wanting to negotiate the children’s care arrangements until the mother had “fixed herself up” because it would “get them abused and bashed [a]gain. I have a seven year old that is terrified of his mother”;
·making strong allegations at interview of the mother directing significant violence towards him and the children;
·not being able to provide information that supported his claims;
·his narrative tending to be expansive when casting allegations but being somewhat confused when asked to elaborate on the allegations;
·being unable to provide an answer when asked what he had done to protect the children from the alleged chronic abuse during the marriage, except to say that there were reports from psychologists and doctors;
·the reports seemingly being from doctors and the “CAMHS” worker that the father had taken the children to see after the orders of 16 November 2018 providing for the children to return to the mother’s care;
·alleging that there were “people” and “witnesses” to the children being abused by the mother;
·not being able to identify the people or witnesses nor verify that they were third party independent witnesses;
·alleging that the mother had been arrested for breach of intervention order whereas he had not; and
·saying that the mother was not interested in the children, as evidenced by the fact that she had not organised to spend supervised time with the children.
In Ms EE’s report dated 9 May 2019 she set out a record of her interview with the father in paragraphs 44 to 58 inclusive. In those paragraphs she recorded the father:
·providing a relatively coherent narrative;
·the narrative being “often light on detail” when the Consultant pursued allegations of the mother;
·being close to his sisters and parents;
·commencing work as a tradesperson after completing Year 12;
·not having worked much in that area and being recently involved in a business with a friend but the business being “on hold” because of property proceedings with the mother;
·that he and the mother had some “good times” in their relationship;
·denying the mother’s claims that he had prevented her from seeking work;
·claiming he had helped the mother with her career and her study and to gain a tertiary qualification;
·that the mother would say that he stopped her from working but that was not true;
·denying the mother’s claims that he had financially controlled her and her access to money;
·saying she had access to a credit card and that he never asked her what she spent money on;
·claiming the mother spent $13,000 on one occasion on a shopping spree;
·queried how he could be described as controlling if he let his wife go to Country O every couple of years alone;
·saying the mother went to Melbourne by herself;
·indicating he was shocked when he read the mother’s affidavit material and indicated that it was “flimsy”;
·saying that they made decisions together and that he used to buy her clothes as “I like my women to stand out”;
·saying that the Centrelink payments that the mother alleged had been paid directly to him “went against the mortgage” and that “we all had access to that money”;
·claiming that the mother was always buying furniture, that she had an MM credit card and that people everywhere were chasing him for money;
·reiterating his claim that the mother went to Country O whenever she wanted and that she was profligate with respect to buying household items or clothes for herself;
·saying all the mother cared about was money;
·claiming that he and the mother were six months in arrears with the mortgage and that the sale of the house was inevitable;
·querying how he could have sold the family home without the mother knowing;
·querying the mother’s assertions in that regard;
·reinforcing his claim that the mother is mentally unstable;
·confirming the mother had put a caveat on the house but that it was “contested and removed”;
·stating the mother was present when the sale of the house was discussed with the Real Estate Agent and that he had a report to confirm that;
·alleging it was the mother who sold the cars before she left for Melbourne;
·that they were worth very little as they were “old”;
·alleging the mother sold the cars to his friend Mr N who then sold them to a car yard;
·alleging the mother owed Mr N a significant amount of money for rent because she had lived in a house owned by him for over a year and did not pay rent, it being unclear whether he was also living in the house with the mother at the time and the father not returning a telephone call from the Consultant to clarify that point;
·being vague about how much money the mother received from Mr N for the cars but possibly it was more than a couple of thousand dollars, but it was between the mother and his friend Mr N;
·being dismissive of any further questions in relation to the sale of the motor vehicles;
·claiming the mother had now breached the Intervention Order five times;
·saying that he and the mother had separated many times because of her behaviour and that she had been unfaithful with an old friend of hers from Country O;
·that he knew that because he has inadvertently seen messages on her phone between she and Mr NN;
·explaining the types of abuse the mother allegedly perpetrated against the children including “locking in toilets, locking in bathrooms and cupboards”;
·that he would beg the mother to just let the children stand against a wall with their hands up as opposed to what she was doing to them;
·alleging that the mother had tried to commit suicide on at least three or four occasions;
·confirming he was concerned and believed she had been referred to specialist support services but did not attend;
·alleging it was he who had taken the children to “CAMHS” because he had noticed their behaviours, that they were hiding under tables and that every time he picked them up from her they had severe issues;
·claiming X would ask him to help them as their mother was punching and kicking him;
·suggesting that the mother had not been motivated to be interviewed as part of the “CAMHS” assessment because she was the alleged perpetrator of the abuse and he had been the one to act upon what he perceived to be the children’s issues;
·saying that he believed the mother was leaving when she went to Melbourne because “she couldn’t take anymore” and that was when she sold her cars;
·saying that he and the mother had discussions with the Real Estate Agent around the sale of their home some weeks prior;
·denying the mother’s allegation that he prevented her from speaking with the children while she was in Melbourne and being unsure why she would claim such a thing;
·that he was considering about 50/50 or shared care of X and Y; and
·that he was engaged to a woman and that they were happy and planned to live together in the not too distant future.
In paragraph 57 of her report Ms EE reported the following:
…When it was suggested that, given the nature and extent of the physical abuse allegations, why would he consider that the children could spend any time with their mother, [Mr Ziegler] again appeared to obfuscate the issue, saying ‘let’s help each other’ (with reference to he and the mother) and ‘the children need a mother and a father’. He then suggested that if the mother ‘has treated them good’ in the past few months, he would agree to a shared care arrangement.
She went on to record the following in paragraph 58:
However, after the observations of [Mr Ziegler] with his son and particularly in light of what he believes his son has disclosed, he said he was now seeking primary care of both children. He queried if the Consultant had heard what this child had said to him. The Consultant reassured [Mr Ziegler] that she had indeed heard what had been discussed during the observations.
The matters referred to in that paragraph are set out later in these reasons in detail in paragraph 126.
In the family report prepared by Regulation 7 Family Consultant Ms AA and dated 21 March 2022, her interaction with and comments to her by both parents were set out under the heading of “ADULTS” in paragraphs 22 to 47 of her report.
In paragraph 23 Ms AA reported:
[Mr Ziegler] arrived 50 minutes early after previously arriving at the Court even earlier and being directed to the Consultant’s office by Court staff. He had anticipated seeing the children as part of the assessment but accepted the Consultant’s decision not to do so without complaint. He willingly engaged in the interview process. Whilst he presented with a positive attitude towards the mother and children, and sought to impress as a father who had changed his ways, his ability to evidence accountability of past mistakes was limited as he appeared to focus on the future as opposed to the past.
She recorded in paragraph 24 the father asking her to read a letter he had written to the mother and that the letter contained “a form of apology for any past mistakes made by the father, and asked the mother to work together with him for the sake of the children.”
She reported Mr Ziegler saying:
·he had remained compliant with orders by refraining to communicate with the mother in any way and by engaging with Mr BB, completing the Circle of Security Parenting Program and the FF Program, as well as the Dads Matter Program and an Anger Management certificate and continuing fortnightly engagement via telephone with his Psychologist, Mr OO;
·that he hoped the parties could learn to co-parent the children as he felt this was the best approach;
·that “holding a grudge and being bitter doesn’t get us anywhere”, but that all he could control was his own actions and that he had moved on for the sake of the children;
·that with respect to his perspective on the issue of family violence and the role he played he stated “the past is the past, I’ve put it all behind me, there’s no hatred, all I want is peace, love and harmony”;
·that “both” parties had been “bitter at each other” and “not in the right headspace” and that “the children paid for it”;
·that he was “trying to better himself” through the various courses;
·that he denied the manipulation of the children by him against the mother was to the extent described by Family Consultant Ms EE in her report;
·that he accepted however that he was not “in the right headspace” at the time but “now everything is different”;
·that he now considered what was best for the children before acting;
·when informed of the children’s comments made earlier that day regarding discipline, that he denied ever forcing Y to stand next to a wall with her hands held up, or that he smacked Y, or that he left X in his room for long periods of time;
·that those things never happened;
·that Mr BB’s conclusions contained in his report dated 6 December 2019 were “completely right” and that he “wasn’t in the right headspace”;
·that he accepted that his yelling at the mother “probably terrified” the children but that it was not just him and that they both yelled;
·that “no kids should see that”, that he now had a wife for almost three years and there was no yelling in that relationship;
·that he learnt a lot especially from the Dads Matter Program;
·that he continued to engage fortnightly with Mr OO and that in relation to the focus of and benefits of the treatment there was “a lot of benefit” and that “I’m bettering myself” and that he touched base with Mr OO to make sure he remained on the right path;
·that by way of example of something he had learned from all of the programs he had completed, prior to completing the Circle of Security Parenting Program he had held tightly onto the children’s hands when taking them to the park but now when he took his step-daughter to the park he encouraged her to go and explore while he remained nearby observing her play;
·that he did not have any concerns about the mother’s mental health, that she had been raising the children alone for the last three years and she must be doing a good job otherwise the children would have called him and told him otherwise;
·that he was very proud of the mother as it would have been very hard for her to raise the children on her own and he thanked her for that;
·that he had no concerns regarding the mother’s care of the children, that she was doing a great job and that he hoped they could do it together in the future;
·denying that he would ever again withhold the children from the mother;
·that he was aware his sister had sighted the mother and children at sport, but when informed the mother did not like having contact with his sister stating “I can’t get involved in other people’s situations”;
·that it was sad his parents had not seen X and Y for three years and that they were missing out on other cousins they did not see whilst in their mother’s care;
·that he believed the children would have many positive memories of their time together and appeared surprised to hear her feedback from her discussion with the children that suggested otherwise;
·that he had always been “loving and caring” because that is his nature; and
·that he was sad that the children sensed the parties unhappiness at the time of their separation and while they were unable to be the “best husband and wife” they could now be “the best parents together” to give the children “the best future”.
In addition, the Court had available to it the history of the orders set out in detail earlier in these reasons as well as the very substantial Reasons for Judgment delivered by Judge Brown on 15 March 2019 when determining interim issues. That order placed the children in the care of the mother during what his Honour referred in [183] of his reasons as the “short to medium term”, with his Honour expressing concern, as detailed in [184] of those reasons, that there would be significant risk to the children that the father “will once again unilaterally withhold the children whilst seeking evidence to buttress his position”. This was the situation that had arisen arose following his orders on 16 November 2018 that returned the children to the care of the mother.
The Law
Part VII of the Act provides the legislative framework within which the Court determines the parties competing parenting proposals. Section 60B(1) sets out the objects of the Act as regards to children's orders, namely to ensure that the best interests of the children are met by:
(a)ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the objects are set out in s 60B(2) and provide that, except when it is or would be contrary to the child's best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order.[5] To determine the best interests of a child the Court must consider the factors set out in s 60CC(2) and (3) of the Act.
[5] s 60CA of the Act.
Section 61DA of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child's parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or family violence, and may be rebutted if the Court is satisfied that it would not be in the child's best interests for the child's parents to have equal shared parental responsibility.[6]
[6] ss 65DA(1), (2) and (4) of the Act.
In the event that an order is made for equal shared parental responsibility the Court must consider whether it is in the child's best interests to spend equal time with each of his or her parents and whether it is reasonably practicable for this to occur.[7]
[7] s 65DAA(1) of the Act.
If the Court determines that such an order is not in the child's best interests, it must consider whether it would be in the child's best interests to spend substantial and significant time with each parent and whether that is reasonably practicable.[8]
[8] s 65DAA(2) of the Act.
The Act defines what is meant by substantial and significant time,[9] and specifies that the Court must have regard to certain issues when deciding whether orders are reasonably practicable.[10]
[9] s 65DAA(3) of the Act.
[10] s 65DAA(5) of the Act.
All of those issues must be considered against the backdrop of the requirement that the parenting order the Court makes must be in X’s and Y's best interests, as determined in accordance with the provisions of s 60CC of the Act, being mindful of the objects of the Act and the principles underlying those objects.
P.C.
s 60CC(2)(a) – The benefit to the child of having a meaningful relationship with both of the child’s parents.
The concept of what constitutes a “meaningful relationship” has been discussed in many cases before this Court including in McCall & Clark (2009) FLC 93-405 (‘McCall & Clark’) at [118] and [119] where the Full Court of the Family Court said, after a discussion as to a definition of the word “meaningful”:
118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child's parents by examination of evidence of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made ('the present relationship approach');
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents ('the presumption approach'); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents ('the prospective approach').
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is 'the prospective approach' although, depending upon factual circumstances, the present relationship approach may also be relevant…
In [121] of the same judgment their Honours referred to and accepted as appropriate “the interpretation of 'meaningful relationship' set out by Brown J in Mazsorski”,[11] and went on to say in [122]:
In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
[11] Mazsorski & Albright (2007) 37 FamLR 518 (‘Mazsorski’).
In Mazsorski, which had been determined some to years prior to McCall & Clark, Brown J had expressed the following at [26] when considering the concept of a meaningful relationship, namely:
What these definitions convey is that 'meaningful', when used in the context of 'meaningful relationship', is synonymous with 'significant' which, in turn, is generally used as a synonym for 'important' or 'of consequence'. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one…
At the time of trial X and Y had not had any form of relationship with their father for a period in excess of three years.
X was interviewed and observed with his father by Family Consultant Ms EE (Ms EE) on 23 April 2019 for the purpose of her report dated 9 May 2019. Ms EE reported on the observations in paragraphs 79 to 91 of that report. In paragraph 112 of her report she said:
The observations between the father and the child [X] were also of significant concern. It was clear to the Consultant, that in these observations the father was placing psychological pressure on this child. The observation was of such an extreme nature, that the Consultant eventually terminated the session. However, even more concerning, is that the father interpreted what this child said, to reinforce his position and he then requested primary care of the children. [Mr Ziegler] not only failed to use his time with his son in a way that might have provided both with some emotional connection, it appeared to be a deliberate attempt to manoeuvre the child for his own gains and agenda. Given what appears to be the father’s disregard for the child, the apparent psychological and emotional abuse, can therefore only be interpreted to be at the extreme end of the scale. The father’s questions were not only leading, but he also sought to engage others (his parents) in order to reinforce his position. There was nothing child focussed in the interaction between the father and [X]. The father’s lack of insight and preparedness to overtly use the child in this way, as witnessed by the Family Consultant is strongly suggestive of child abuse in the form of psychological maltreatment. This insidious undermining of a child’s reality could result in long term consequences for this child and his development.
X was aged 8 years at that time.
Y, who was only aged 4 at the time, refused to enter the play room to see her father. In paragraph 78 of her report Family Consultant Ms EE said:
The child [Y] would not enter the play room. She was advised that the Consultant would remain with her, but she started to cry and become very distressed. She repeatedly said ‘no I don’t want to see him’…
By the time of the second family report dated 21 March 2022 and prepared by Ms AA, X was 10 years old and Y was aged 7 years.
During his interview X reportedly stated to Ms AA that he did not want to see his father in the future, that if he spent unsupervised time with him he would not feel safe but “if there was a camera to keep evidence I’d feel not unsafe but not comfortable”.[12]
[12] Family report of Ms AA dated 21 March 2022 – paragraph 53.
In paragraph 56 of the same report Ms AA recorded Y telling her that she did not want to spend time with her father and in paragraph 59 that she did not feel safe with her father.
By contrast, X was reported in paragraphs 50 and 51 of Ms AA’s report as describing his mother as doing “an amazing job” and that “she’s just a perfect mum”. He went on to say, as reported in paragraph 52, that “I love it with Mum”. He was reported in paragraph 54 as describing being grateful towards his mother for facilitating his various activities and interests.
Y was reported in paragraph 56 of the report as describing her mother as “a good mum”, and in paragraphs 59 and 60 as feeling safe with her mother and that her mother was “always kind and always does things for me”.
In paragraph 62 under the heading “OBSERVATIONS OF INTERACTIONS”, Ms AA reported:
Informal observations of interactions between the children and the mother briefly took place as part of the assessment process. The children appeared happy, playful, easily settled and to be thriving in her care. [Ms Ziegler] also impressed as a loving, confident and caring parent who was very proud of her children.
Ms AA’s evidence as to that observation was not shaken in cross‑examination. It illustrated a meaningful relationship between X and Y and their mother, and a positive benefit to the children flowing from that relationship.
The children’s expressed reluctance to see their father, even in the presence of Ms AA, resulted in there being no observation of them interacting with him. I find that such an approach by Ms AA was protective of both children’s emotional wellbeing.
I find that it is appropriate to consider the other relevant legislative factors prior to considering whether X and/or Y might also derive positive benefit from the Court attempting to craft orders to encourage a relationship between them or either of them and their father.
s 60CC(2)(b) – The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the mother’s trial affidavit she deposed to being subjected to domestic violence by the father in a myriad of forms from the day of the parties’ marriage.
The father was not able to cross-examine the mother at trial because of the provisions of s 102NA(2) of the Act. He did not adduce any evidence for trial. I have commented however earlier herein on the conversations between he and each of the Family Consultants as recorded in their reports relied on by the Independent Children's Lawyer and the mother, as well as with Family Consultant Dr D, which reports were before the Court without objection.
The mother was cross-examined by the Independent Children's Lawyer. She presented as thoughtful and considered but fearful of the father and anxious about the possibility of the children spending time with him. Nevertheless, she was prepared to concede that it may help her to develop some trust in the father if he was to attend upon Mr BB in the manner as ordered by Judge Brown and obtain a final report from him that was favourable as to his progress.
She said that it was important that the father understood the importance of the children having two parents, but in circumstances where the past was “very scary” she was concerned that she still may not trust the father.
She conceded that it would be a benefit to the children to have both parents in their lives in what the Independent Children's Lawyer referred to as a “normal case” but said her case was different because she did not want the children and herself to have to go through “things” again. She said she wanted the children to be “peaceful and safe”.
She denied being physically abusive towards the children or that there were any concerns about her mental health.
The mother told the Court that she was prepared to provide an address or a post box to enable the father to forward cards and gifts to the children at special times including Christmas and the children’s birthday, and she further indicated she was prepared to tell the father if the children suffered medical emergencies, perhaps via a “parenting app”.
She said she was prepared to provide the father with the children’s school reports in the same manner, and did not mind doing so as long as the children were safe. She said in any event that if the Court told her that she had to provide that information she would obey the court order.
She agreed with the Independent Children's Lawyer that Ms AA reported that the children said they did not feel safe with their father, and said that she shared that view. She said it was not a view she imposed on them but rather, believed it was the children expressing their true feelings.
There was nothing in the mother’s presentation before me suggestive of her pursuing “an agenda” against the father to prevent a relationship between he and the children. I assessed her as doing her best to ensure that the children were not only safe but felt safe.
Matters reported by the children to both Ms EE and Ms AA, together with their presentation, lent credence to the mother’s case.
In the family report of Ms EE dated 9 May 2019, she reported in paragraphs 62 to 69 various comments and reports made to her by X, then aged 8 years, of his mother:
·hitting both he and his sister;
·lying to him;
·leaving the children alone at night;
·making him do lots of school work just for a toy;
·hitting him for no reason; and
·cutting herself with a knife,
and reporting:
·not feeling safe unless his dad was with him;
·hearing a lot of fighting when his parents were together;
·his mother swearing at them in Country O language;
·his mother having just hit him “seven days ago” “for no reason”;
·his mother saying very “bad words” to him and writing those words down for the Consultant, being “fuck you, you’re a freken (sic) peace (sic) of shit” and “he’s an idiot”; and
·that he would like his mother to treat him better and stop hitting and screaming and have a better personality.
He also reported to the Consultant that when the mother had left for Melbourne he had “faked” crying because he did not want her to think that he was missing her. That comment made little sense.
X also told the Consultant that she should not believe what Y told her because Y had been brainwashed by her mother and would probably say her mother had not hit her but she had.
Ms EE described X, in paragraph 60 of her report, as being a “mature little boy who was keen to impress”, but at times appearing to revert to being a small boy. It was her position that such a change was more evident when X was observed with his mother.
Ms EE reported in that same paragraph that when X was recounting the abovementioned events in relation to his mother allegedly hitting him “his head was down and he appeared to simply reel off events.”
In paragraph 72 she reported X saying that Y would not want to see their father because she was frightened he might take her. Indeed that was the fear expressed by Y then aged 4, as reported in paragraph 74 of Ms EE’s report.
Y was also reported in that paragraph as saying her aunt and uncle made her put her hands in the air for long periods of time such that her arms got very tired and also her aunt made her stand against the wall for long periods of time apparently as punishment.
She told Ms EE, as reported in paragraph 75 of the report, that it was her “mummy” who would comfort her and gave her the most hugs but that she saw her parents being rude to each other in the old house. She told Ms EE she was more concerned for “mummy because daddy was louder” and that she and X were spying on their parents.
In paragraph 76 Ms EE reported Y saying she had heard derogatory comments made about her mother by her father, her uncle and aunty but that her mother never said any bad words, and that although X thought their father was a good father, he was not because of what he said about her mother.
In paragraph 77 she was reported as saying she had “never been smacked by mummy, never”.
Y was reported in paragraph 78 to becoming very distressed and refusing to see her father for the purposes of observed interaction.
X, to the contrary, was enthusiastic about seeing his father and their interactions were described in paragraphs 79 to 91 of Ms EE’s report.
In view of the contents of paragraph 112 of Ms EE’s report, as set out in paragraph 103 of these reasons, in which she expressed serious concerns about the psychological pressure being placed on X during this observed interaction, I consider it appropriate to set out paragraphs 78 to 91 of the report in full, namely:
78.The child [Y] would not enter the play room. She was advised that the Consultant would remain with her, but she started to cry and become very distressed. She repeatedly said ‘no I don’t want to see him’. By contrast, [X] said ‘he couldn’t wait to see his Dad’.
79.[X] ran to his father and jumped into his arms. He remained there on his lap, almost curled in a foetal position, with his father saying ‘I am sorry you have to go through this, things will change and we will be seeing more of each other’.
80.The child appeared to cry and the father held on to him. The father then asked where [Y] was, and the child said ‘she doesn’t want to see you’. The father appeared to acknowledge this.
81.The father then asked the child ‘is your mother being nice to you’ and [X] replied ‘no’ and ‘I have told her’. The father said ‘I miss you so much…[Ms A] says she is sorry she couldn’t speak to you the other day, but she does not want to breach the Intervention Order’. The father then said something about ‘when you come to us we are going to….’ But the full content of what was said was not audible. The father then told the child he ‘meant the world’ to him.
82.The father then stated, you have ‘lost weight’ to which [X] replied ‘I haven’t been eating’. The father said ‘is that what she does to you, doesn’t feed you’. [X] then said ‘I had to pack my own lunch box’ and the father said ‘so she doesn’t care’. [X] continued, ‘each morning she doesn’t give us food’.
83.At this point in time the father queried if he could take some photographs and the Consultant entered the room. It was pointed out to [X] that he had a lunch box in the Child Care Centre and would he like the Consultant to bring it in, at which point, [X] appeared to try and explain to his father that he did have food, lots of it, but sometimes didn’t feel like eating it.
84.The father and child then spent a considerable amount of time taking photographs of themselves. They then ‘face timed’ [Mr Ziegler’s] parents. The father commenced by saying ‘he’s lost so much weight’ and ‘she’s (the mother) is not feeding him again’, at which point [X] tried to say something, but it was not audible. It appeared as though [Mr Ziegler’s] parents had recently moved, so [X] asked his grandparents to show him his room, with the father saying you have a bedroom and a lounge. The child queried if his PS4 player was in the home.
85.The grandparents then asked when the child was coming to see them. The father said ‘we are going to ask the Judge if they (the children) can see you before you go to [Country O]’. The grandparents asked where [Y] was and the father said ‘not feeling well’. The grandparents were again heard to say ‘so they don’[t] let you see your […] and […] ([Country O language] for grandparents) and [X] said ‘I will ask the Judge’ and the father said ‘you just worry about your study’, but [X] said ‘no Dad I will do it’.
86.The father then asked ‘does she make you clean every day’ to which [X] replied, ‘yes every day and then she gives me only 5 cents’. The father said ‘when you come to me, I will be your slave’. [X] then said that his [grandparent] ‘always has money’ but the father said ‘I have none left’.
87.The father then told his son to ‘just play along with your mother and just ignore her when she is rude and nasty’. [X] said ‘every day I try’. The father then said to the grandparents, ‘they will take him from me’, some words were spoken in [Country O language] and then they farewelled each other.
88.The father then queried if the mother was taking [X] to his [sport]. The child said ‘no’, and then they discussed which [sports ground] and the father said ‘she (the mother) didn’t listen’. The father then asked again about [Y], and [X] said ‘it might also be because of [Mr N]’ to which the father replied ‘what’s he got to do with it?’
89.[X] then told the father that he had advised the Consultant that she needed to believe him more about what was happening because he was older. The father said ‘one day your mother will wake up’ and then he asked ‘does she still smack you?’ [X] said ‘I have told [Ms EE] (Family Consultant) that she does’. The father then held the child tightly and he said ‘did she hurt you there’ indicating a possible [sore] spot. [X] then said ‘once when I was sleeping, she came and just hit me and once mum grabbed [Y] and I told her not to do it’. The father said ‘just say sorry to her and she might leave you alone’. Then, ‘does she still leave you alone or at her friend’s houses […]?’ [X] replied ‘yes, all of the time’.
90.They then discussed the father’s beard and the father was heard to say ‘when you come back I will shave, I will not shave again until you are returned to me’.
91.When they were advised the time was over, the father held the child, [X] appeared to not want to leave, but he was told quite firmly that it was time to return to the Child Care room.
Ms AA agreed that during the interview with the father she had been led to understand that he had apparently re‑partnered and had a step-child, but was unable to reflect further on that information and knew nothing more.
She said she was unable to comment on what the children may experience in the father’s household, and that her recommendations as contained in paragraphs 78 to 81 of her report remained her position as at the date of trial. It was her evidence that coming to those conclusions she had relied on her own observations and the material available to her from the Court.
Ms AA said it was her position that it may be appropriate for the children to spend supervised time with their father at a children’s contact service if, and when, information was received from a therapist such as Mr BB as to the father gaining appropriate insight into the relationship issues between he and the children as previously referred to in her report and the earlier report of Ms EE. She expressed that in her opinion the father was “not there yet”.
When asked what problems she saw if the father did not undertake that therapy to the required level she replied that:
·she was scared that it would be setting the children up to fail;
·that they would be very fearful;
·it may well affect their life with their mother, their school and their general day to day living; and
·she was concerned as to how the mother would manage the children’s emotions and her concerns as to her own safety.
When asked if she had recommendations for contact between the children and their father if the Court found no physical time spending could occur such that the children’s emotional safety was protected, she expressed a view that the father should be at liberty to send letters, cards and gifts on special occasions, with the children encouraged to respectfully respond.
She said she was concerned that if the children did not get that level of communication or any information about their father they may think things were worse than they believed and/or blame themselves for that situation.
When asked more specifically what Ms AA considered was necessary before physical time spending occurred between the children and their father, she expressed the view that it would be necessary for the Court to be assured that the father had insight into the children’s emotions, the ability to empathise with the children and their needs and insight into how he could support the children.
Ms AA agreed that for the father to gain that insight he would need a skilled therapist, but noted that if it was the father’s position that the basis of such therapy was invalid then it would be hard for him to engage if he saw no need for change. It was her view that it would be very difficult, if he maintained that position, to get to a stage where he could empathise with the children.
Ms AA expressed the opinion that there was some merit in the father being provided with information regarding any major medical issues arising with respect to the children.
I am satisfied that orders the Court makes with respect to the competing applications must protect X and Y from psychological abuse. I find on the evidence of the mother and Family Consultant Dr D, Ms EE and Ms AA that they are at risk of psychological abuse from the father.
In addition, I find that orders must ensure that the children are not exposed to family violence and/or abuse that may be directed to or inflicted on their mother by their father.
I prefer the evidence of the mother with respect to allegations of family violence to that of the father. The evidence in that regard contained in her trial affidavit is consistent with:
·matters raised by her with Family Consultant Dr D as reported in her Memorandum to the Court dated 19 February 2019;
·issues raised by her with Family Consultant Ms EE (Ms EE) as reported in the Memorandum to the Court by the Family Consultant dated 15 March 2019;
·matters reported by her to Family Consultant Ms EE in her family report dated 9 May 2019; and
·matters reported by her to Family Consultant Ms AA in her report dated 21 March 2022.
Taking into account those matters and the presentation of the mother in the witness box during cross-examination I find that she gave her evidence truthfully and without embellishment. I find that the father’s conduct towards her during the course of their relationship and post‑separation was coercive, controlling and abusive and caused her, and was still causing her at the time of trial, to be fearful for the safety of the children and herself.
In addition, taking into account:
·the concerning matters raised in the unchallenged report of Family Consultant Ms EE;
·the concerns reported by her in her Memorandum to Court dated 15 March 2019;
·the concerns reported by Family Consultant Dr D in her Memorandum to Court dated 19 February 2019; and
·Ms AA’s unshaken evidence,
I find that the father subjected both children, but particularly X, to psychological abuse by attempting to enforce a false narrative about the children’s mother on both children.
I find that both X and Y were exposed to family violence in the context of, at the very least, “the yelling” that the father conceded to Ms AA would have been terrifying for the children. I find that on occasions the father subjected them to stern parenting measures, the impact of which remained with the children as described to Ms AA and in respect of which both children remained fearful.
Additional Considerations
s 60CC(3)(a) – Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
In the circumstances of this case, I am satisfied that a consideration of the children’s views and the weight to be placed on them is better undertaken in the context of a consideration of the nature of the children’s relationship with each of their parents.
s 60CC(3)(b) – The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child).
I have already referred at length to the fractured relationship between both X and Y and their father. Neither child wished to be observed with their father or spend time with him in March 2022. At the time of trial neither of them had spent time with their father for over three years.
Notwithstanding the comments made by X to Family Consultant Ms EE when she conducted a handover of both children from the father to the mother on 15 March 2019, his initial demeanour at that time, and those reported in her family report dated 9 May 2019 and to which I have referred at length in these reasons, I am not satisfied that X and Y have anything but a close and loving relationship with their mother.
On 15 November 2018, pursuant to an order of Judge Brown, the children spent the day with their mother. They had not seen her since 28 August 2018. The handover of the children to the mother was effected in the childcare section of the Court by Family Consultant Ms C and the father’s sister, Ms A.
In the Family Consultant Memorandum to Court dated 15 November 2018 Family Consultant Ms C reported that the father’s sister presented her with a Discharge Summary of X’s attendance at the PP Hospital the previous night. He had been diagnosed as having had an episode of panic, having been told he would need to see his mother the next day. He was described as hyperventilating during the episode, having had chest pain and losing control of his bladder, running away and hiding in a closet. It was reported that the ambulance had been called and X had settled while they were there, that the father was concerned about how upset X had been, and that it appeared X had been upset by the return of his mother after her being away for some time.
The Family Consultant reported that upon arrival and after the departure of the father’s sister X immediately disappeared into the dolls’ house. Y was left to respond to “her mother’s emotional greetings” with the mother requesting a hug and Y complying. Y was then reported as saying to her mother that her uncle had said they should say “no” to her (their mother) for “all our presents”. X then emerged from the dolls’ house and gave his mother a hug.
Y was reported as telling her mother that she is “not going to be rude anymore or punch them” and Ms C reported that X told Y not to tell their father that he had hugged his mother. It was further reported that Y whispered “I’m going to tell [Ms Ziegler] [the mother] that I’m not going to go with her because she’s a bad person”, but following upon the Family Consultant telling Y that the Judge believed her mother to be a good person and had arranged for her to spend the day with her, Y said excitedly “I’m going to spend the day with [Ms Ziegler] [the mother] because she’s a good person” before running off happily to play dress ups with her mother.
The Family Consultant further reported that X told Y that they should not tell their father or uncle that they were enjoying their time with their mother, but that at the end of the day at the 3.00 pm handover neither child wanted their mother to leave and sought reassurances from her that they would be seeing her again. Both children were reported to “urgently” draw cards with love hearts all over to give to their mother before she left, having earlier made paintings that they also wanted her to take with her.
X was reported as repeatedly asking for yet another hug, both children chorusing that “it was the best day ever” and telling their father’s sister what a great day it had been.
That report was unchallenged at trial, and the salient feature for the purpose of these reasons was the stark difference between the children’s initial presentation and reluctance to see their mother and their joyful interaction with her and pleasure at the opportunity to spend time with her.
On 15 March 2019 the father was ordered by Judge Brown to deliver the children to the childcare section of the Court pending his decision on the question of interim care arrangements.
Family Consultant Ms EE provided a Memorandum to the Court regarding the events that day which was not challenged by the father at trial.
I referred earlier in these reasons in paragraph 58 to:
·the difficulty the Family Consultant had in persuading the father to physically let go of X and leave the childcare premises as well as X clinging on to his father; and
·the fearful presentation of X in particular concerning separating from his father and being so “terrified” of his mother that his father had had to take him to hospital the previous night because of anxiety,
being in stark contrast to how he quite easily relaxed in the company of his mother in a short time and happily interacted with his mother’s uncle.
The comments that he made to the Family Consultant after his mother arrived, as reported on the third page of the report stressing to her that even if he looked happy he was not, were again completely incongruous with his interactions with his mother. Both he and Y left childcare with their mother and her uncle after his Honour’s decision in what was described as being a “congenial family gathering” with “high energy levels”.
By the time of the interviews conducted by Family Consultant Ms EE for the purpose of her report dated 9 May 2019, X and Y had been in the care of their mother pursuant to the order of Judge Brown of 15 March 2019 for approximately five weeks with no orders for time spending with their father.
In discussions with the Family Consultant during his interview as set out in paragraphs 60 to 72 of the family report, X again made numerous complaints about his mother hitting him, not keeping up with promises, making him do lots of school work and only giving him a toy for that effort and screaming at him. He also told the Family Consultant he had seen his mother “cut herself” and that he did not feel safe unless his “Dad” was with him.
I have earlier set out herein the observations of interactions between X and his father during that interview process as set out in paragraphs 78 to 91 of the report, and the serious concerns expressed by the Family Consultant who assessed his relationship with his father as being “consistent with a coercive-controlling relationship in which this child is emotionally manipulated by the father as a means to the father’s own ends.”[19]
[19] Family report of Ms EE dated 9 May 2019 – paragraph 102.
In interview on that occasion Y was reported as being visibly upset about the concept of seeing her father and being concerned that “he always takes us”. She had nothing positive to say about her father to the Family Consultant and would not enter the playroom to spend time with him.
Again, when it came time for the children to be observed with their mother, their presentation, particularly that of X, was in complete contrast to the complaints he had made of her as reported by the Family Consultant.
In paragraphs 92 to 100, Family Consultant Ms EE set out observations of children having a loving, affectionate and fun interaction with their mother involving laughing, joking, physical affection and with the children at all times seeking proximity to their mother. The mother was observed to be warm and affectionate towards the children, providing them with physical affection and guidance about their activities.
By the time Ms AA prepared the last family report dated 21 March 2022 the children had not seen their father for nearly three years. Both children reported to her a positive, loving and safe relationship with their mother. X described her as “just a perfect mum”.[20] Y reported reporting to Ms AA that she loved that her mother was “always kind and always does things for me”.[21]
[20] Family report of Ms AA dated 21 March 2022 – paragraph 51.
[21] Family report of Ms AA dated 21 March 2022 – paragraph 60.
Both children reported to Ms AA that they felt unsafe with their father, with X telling her, as described in paragraph 52 of the report, that he did not remember a lot about his father, had no good memories and that he “wasn’t good” with either he or with Y.
X, by then aged nearly 11, expressed a wish not to see his father in the future, with Y saying she did not want to spend any time with her father as reported in paragraph 56 of the report.
Ms AA was clear in cross-examination that she did not consider that the children had been coached by their mother and that they were genuinely reporting on their lived experiences.
The children’s descriptions of their relationship with their mother and their memories of their relationship with their father accorded with the mother’s evidence as to her experience of Mr Ziegler as a husband and father. I find however their descriptions were expressed to Ms AA in age appropriate language and expression.
The evidence of Ms AA was not shaken in cross-examination. The evidence of Family Consultants Ms C, Dr D and Ms EE (Ms EE) was before the Court and not challenged by the father.
I am satisfied that both X and Y have a close and loving relationship with their mother and feel completely safe in her care.
I find that both children have a level of fear of their father reflective of their experience of his coercing and controlling nature and his conduct toward them and their mother during the course of the parties’ marriage. In the case of Y I find her fear is also reflective of the distress caused to her when she was removed from her mother’s care by her father.
The various comments made by X to the Family Consultants to try and stress that any suggestion of happiness or pleasure in his mother’s company was false, as well as his comments to Y, overheard by Family Consultant Ms EE, about the need to ensure no pleasure in their mother’s company was relayed to their father or their father’s brother, was reflective of X’s fear of repercussions from his father should he not reject his mother.
I am satisfied that X’s feeling of a need to convince his father that both he and Y rejected their mother was reflective of him feeling controlled and coerced by his father and his father trying to convince him, as suggested by Ms AA in cross-examination, of a world view that simply did not accord with the reality of either children’s lives.
I find that the father has exhibited no capacity in the time since the parties separated and since he saw the children to be able to reflect on the toxicity of a relationship that involves coercive and controlling behaviour, particularly a parent to a child. I find that until such insight is gained by the father the nature of such a relationship between the children and their father could only be damaging to their psychological wellbeing.
I find that these issues illustrated a firm wish on the part of the children to live with their mother and spend no time with their father. I find that a failure on the part of the Court to implement those parenting arrangements for X and Y would result in further trauma and psychological damage.
s 60CC(3)(c) – The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child;
(ii) to spend time with the child; and
(iii) to communicate with the child.
and
s 60CC(3)(ca) – The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
I find in the circumstances of this case that a consideration of these factors is not relevant to a determination of the particulars issues in question.
s 60CC(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
At the time of trial the children had not spent time with or communicated with their father for some three years.
They clearly indicated that neither of them wanted to see their father or would feel safe with him.
I have already found that the children’s psychological wellbeing would be at risk if they spent time with their father prior to him acquiring the capacity to empathise with their position, in circumstances where I have accepted the evidence of the children, the various Family Consultants and the mother as to her and the children’s experiences of life with the father.
The children’s relationship with their mother was confirmed by Ms AA in cross‑examination as being a safe, secure and loving relationship. She described the children as thriving in the care of the mother.
Although the father was ultimately able to concede to Ms AA, as reported in paragraph 38 of her report, that he had:
·no concerns about the mother’s mental health;
·that she must be doing a good job having been raising the children alone for the last three years otherwise the children would have called him and told him otherwise;
·that he was “very proud of her”; and
·that “it would have been very hard for her to raise them on her own; I actually thank her for that”,
there was a lack of genuine feeling in those concessions evident in his inability to concede any level of responsibility for his conduct towards the mother and the children during the relationship and post-separation with respect to abuse involving family violence and coercive control.
His decision to stop seeing Mr BB after four sessions and the filing of Mr BB’s report indicating that he was unable to properly consider the contents of Ms EE’s family report or empathise with the children or “walk in the children’s shoes” in the circumstances of a denial of family violence, was illustrative of him not having acquired any insight into the trauma previously caused to the mother and the children and almost certainly going to be caused to them if orders were made for the children to physically spend time with their father.
I find that in the concessions made to Ms AA to which I have referred above, together with those described by her in paragraph 23 of her report where he “presented with a positive attitude towards the mother and children, and sought to impress as a father who had changed his ways”, he was simply “jumping through the required hoops” (my words) to achieve his aim of proving the mother wrong and obtaining orders to see the children.
In paragraph 184 of reasons delivered on 15 March 2019 Judge Brown, in determining that there should be no order for time spending between the children and their father, said as follows:
The concern is that the situation which arose following the 16 November orders will recur and the father will once again unilaterally withhold the children whilst seeking evidence to buttress his position…
I find that such a concern still existed at the time of trial and that a change in the children’s circumstances involving spending time with their father supervised or otherwise will have a deleterious effect on their psychological wellbeing. I find that they will both be likely to feel unsafe in the care of their father and be exposed to coercive and controlling behaviour by him towards them that may weaken or even sever their relationship with their mother.
Family Consultant Ms EE, Family Consultant Ms AA and Mr BB have all referred to the need for the father to gain insight into the nature of his relationship with the children and the children’s relationship with their mother such that he is able to empathise with the children’s position. As at the date of trial Mr Ziegler had failed to illustrate any capacity to do so.
In addition, although no evidence of any significance was before the Court as to this matter at the time of trial, it would appear that in the three years preceding the trial the father had re‑partnered, possibly re‑married, and his household appeared to include another adult and a child unknown to either X or Y. That information only came to light during Mr Ziegler’s discussions with Family Consultant Ms AA.
There is no evidence before the Court as to how the children would manage that change in their circumstances. The father, in failing to bring appropriate evidence before the Court for the purposes of trial, has left the Court in a position where it can make no assessment of such a significant change in his circumstances that in turn may effect a significant change in the children’s circumstances, the benefits or otherwise of which are completely unknown.
s 60CC(3)(e) – The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This factor is not relevant in the consideration of the issues in this matter.
s 60CC(3)(f) – The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
The father did not put evidence before the Court for trial as to his capacity to provide for the physical needs of the children or their intellectual needs.
Evidence adduced by the mother at trial which was unshaken in cross-examination, together with the evidence of Ms AA, satisfies me that both children are intelligent and thoughtful children and that the children’s intellectual and social needs are well met by their mother’s level of care.
I have referred at length to my serious concerns about the ability of the father to provide for the children’s emotional needs. I find these have been well met by the mother.
s 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
and
s 60CC(3)(h) – If the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right.
I do not consider that the matters referred to in s 60CC(3)(g) and (h) of the Act would advance this matter further.
s 60CC(3)(i) – The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
I am satisfied, taking into account my consideration of relevant factors in these reasons to date that it is not necessary to refer to this factor at any length. I find however that overall the mother has an excellent attitude to the children. She has attended well and competently to all of the responsibilities of parenthood and has provided X and Y with a safe and loving home.
I also find that the mother is genuinely frightened for the safety of the children if they are to spend time with their father, including their emotional safety, and that her fears are well‑founded in her experience of life with the father during the marriage and the exposure of the children to family violence in the household during that time, as well as emotional manipulation of the children by the father subsequent to separation.
I find that the mother’s evidence was calm and reasoned in that regard. I find that she was not, as a matter of principle, opposed to the children having the benefit of having both parents in their lives. I further find that she would comply with any orders of the Court.
I have already referred at length to my concerns about the father’s attitude to the emotional needs of both X and Y.
I find that it is a significant responsibility of parenthood that parents be supportive of their children’s relationship with the other parent.
I find that the father coerced the mother into leaving the children with him when he suggested she go to Melbourne, that he attempted to alienate the children from her, and that he made unfounded complaints of violence against her post-separation. I find this impacted on the children’s relationship with their primary parent, reflected in their fears regarding their emotional and physical relationship with their father.
I am satisfied, in the absence of any evidence being adduced by the father to the contrary, that the allegations he made to child protection and police authorities as to the mother’s behaviour towards the children had no basis in fact and was designed to alienate her from the children’s lives. Such conduct is the antithesis of that expected of a responsible parent.
s 60CC(3)(j) – Any family violence involving the child or a member of the child’s family.
and
s 60CC(3)(k) – If a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter.
Taking into account the findings that I have made in my consideration of the other s 60CC factors to which I have referred in these reasons, and where there are no family violence orders in place, I do not consider further discussion of these factors will advance this matter further.
s 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
At the time of trial proceedings had been on foot in this matter for almost four years.
I find that the children are now both of an age and a level of maturity to reasonably expect that the Court will listen carefully to their independent views and perceptions expressed to the relevant experts and accord them the respect to which they should be entitled.
I am satisfied the views expressed by the children are genuine and not a result of any effort on the part of the mother to alienate them from their father and from a relationship with him. I find they are based on the genuine fears of the mother and both children as to their safety if orders are made for them to spend time with their father.
The father had ample opportunity to put all and any material upon which he relied to substantiate his various allegations against the mother before the Court for the purpose of trial. He failed to do so.
By the time of trial he had engaged three separate firms of solicitors since the proceedings commenced. He was the recipient of legal aid pursuant to the provisions of s 102NA(2) of the Act for the purposes of trial. He elected to terminate his last solicitor’s instructions very shortly prior to trial.
He demonstrated the capacity to file an application to adjourn the trial and file an affidavit of significant length in support of that application on his own behalf on the doorstep of the trial. He sought the adjournment on the basis of an assertion that Family Consultant Ms AA had promoted reunification therapy between he and the children. No such recommendation had been made by Family Consultant Ms AA other than in accordance with a certain set of circumstances which had not been met by the father.
It is to be hoped that the father will accept the orders of the Court to enable the mother and the children to be relieved from further court proceedings until, at the very least, such time as the father has committed to and achieved a level of insight into his role in the breakdown of the relationship between he and the children.
Parental Responsibility
In the father’s Amended Response filed on 30 October 2020 he sought an order providing for he and the mother to have equal shared parental responsibility for X and Y.
In the mother’s Amended Initiating Application filed 25 May 2022 she sought an order for sole parental responsibility for the children.
Section 61DA(1) of the Act provides that:
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act is in the following terms:
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
I find that the presumption in favour of an order for equal shared parental responsibility does not apply in the circumstances of this case.
I have found the father subjected the mother to physical violence as well as coercive control and that the children were exposed to family violence and to strict parenting practices on the part of the father. I also find that X, and to a lesser extent Y, were subjected to coercive control by the father by way of his attempt to have X in particular accept a false narrative of his mother’s character and conduct. The effect of the father’s conduct resulted in the mother and both children still being genuinely and reasonably fearful of the father at the time of trial.
I have also found that the children would be at risk of psychological damage if the Court were to make orders for them to spend time with the father.
The father conceded that the mother had done a good job of raising the children on her own for the three years leading up to trial.
I find that she is a responsible parent who loves X and Y and will make responsible and child-focused decisions with respect to any major long-term issues concerning them. I accept her evidence that if she is required to provide information to the father about major health issues and school progress of the children she will comply with orders, and find that such orders are in their best interests.
I am confident that the mother will not utilise orders for sole parental responsibility in any way that would further estrange the children from their father.
I intend to make an order restraining the father from removing the children X and Y from the Commonwealth of Australia. I do not intend to restrict the mother in the same manner.
On the evidence the father has both his parents and siblings resident in and about the Adelaide metropolitan area. That is not the position of the mother whose close relatives remain in Country O.
The father elected not to put evidence before the Court as to his personal circumstances, including employment and relationships. In those circumstances the Court was not able to make findings as to his ties to Australia.
The father’s coercive and controlling conduct at the time of separation and in the months thereafter was and remains concerning. The father did not take the opportunity to put any evidence before the Court that may have explained or justified his actions.
There is no evidence before the Court to suggest that the mother is not firmly settled in Australia. She is in regular employment, has been so for a significant period of time since separation, and is clearly supportive of the children’s education and extracurricular activities in the Adelaide metropolitan area.
I am not satisfied that the children are at any risk of being permanently removed from the Commonwealth of Australia by their mother. Taking into account the events to which I have referred at some length herein, I am not able to be so confident with respect to the father. I accept that he has made no attempts to remove the children from the mother’s care for a period of three years prior to trial and note that he has apparently complied with Judge Brown’s orders of 14 May 2019 as regards not approaching the mother or the children.
Findings concerning s 60CC(2)(a) of the Act
Earlier in my reasons I referred to needing to consider the issue of the benefit to the children of having a meaningful relationship with both of their parents after my consideration of the other factors relevant to the making of parenting orders.
Taking into account the findings I have made as contained in these reasons, I am not satisfied that it would be in either X or Y’s best interests for the Court to attempt to craft orders to foster a relationship between both or either of them and their father.
The mother was quite clear in her evidence, when being cross-examined by the Independent Children's Lawyer, that she would agree that in most cases it was very important for children to have both parents in their lives. It was her view however that in circumstances where she and the children had been subjected to and exposed to family violence on the part of the father, including behaviour of a coercive and controlling nature towards them, that such a relationship was not in the best interests of the children at this time.
It was her position that not only the children needed to feel safe but that she also needed to feel safe, a state of mind that none of them had achieved as regards contact with the father by the time of trial.
I find that any orders that attempt to foster a relationship between the father and the children in this matter will have the result of undermining any sense of safety on the part of the mother and the children and cause inevitable psychological distress to the children. I do not consider such a situation to be in X and Y’s best interest.
Conclusion
Taking all of the matters to which I have referred in these reasons into account I find that it is in the best interests of X and Y for their mother to have sole parental responsibility for them and for them to live with her.
I find that any physical or verbal contact between the children and their father would place both children at risk of psychological damage arising from:
·the family violence to which they were exposed during the period of their parents’ relationship; and
·the actions taken by their father such that they were removed from the care of their primary caregiver and subjected to coercive control for a period of some three months between August and November 2018 and a further period of two months in early 2019.
I find that there was no basis for the children to be so removed, and that during the time the father was the sole caregiver for the children he attempted to fabricate evidence against the mother involving allegations of her being violent towards the children to support his case for primary care of the children on a final basis.
I find these actions were taken by the father at a time the children were 7 years old and 3 years old respectively and had been in the primary care of their mother for all of that time.
I find the father’s actions in late 2018 and early 2019 to be the most significant and serious illustrations of his propensity to coerce and control the mother and to demonstrate the same such behaviour towards the children, by attempting to introduce into their view of the world and their relationship with their mother a narrative that did not fit with their experience.
I find that it is not in the best interests of the children to make an order for reunification counselling involving the father and the children. The evidence of Family Consultant Ms C, Family Consultant Dr D, Family Consultant Ms EE, Family Consultant Ms AA and Mr BB as well as the Court’s own observations of the father’s demeanour during the proceedings and his submissions to the Court support a finding that the father has not been able to accept any genuine responsibility for his unacceptable conduct towards the mother both during the period of the relationship and post-separation, or gain sufficient insight such that he is able to empathise with the children’s views and feelings.
I accept the evidence of Family Consultant Ms AA that the process of reunification counselling would put the children’s psychological wellbeing at risk without the father gaining such insights.
For those reasons I make the orders as set out at the commencement of these Reasons for Judgment.
I certify that the preceding two hundred and eighty-six (286) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead. Associate:
Dated: 19 October 2022
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