Abercrombie & Damon (No 3)
[2021] FCCA 682
•8 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Abercrombie & Damon (No 3) [2021] FCCA 682
File number(s): DGC 3440 of 2011 Judgment of: JUDGE O'SULLIVAN Date of judgment: 8 April 2021 Catchwords: FAMILY LAW – Parenting – dispute over order for equal shared parental responsibility – live with orders for the children – dispute over time spent orders for the children – evidence of family report writer – position of the Independent Children’s Lawyer – final orders in the children’s best interests Legislation: Evidence Act 1995 (Cth) s 128
Family Law Act1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 62G, 65DAA, 69ZT, 102NA
Cases cited: Abercrombie & Damon [2019] FCCA 3543
Abercrombie & Damon (No.2) [2020] FCCA 910
Sanders & Sanders (1976) FLC 90-078
Albert & Plowman [2020] FamCAFC 23
Adamson & Adamson (2014) FLC 93-622
Goode & Goode (2006) FLC 93-286
MRR & GR (2010) 240 CLR 461
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Sigley & Evor [2001] FamCAFC 22
R&R: Children’s Wishes (2000) FLC 93-000
Dundas & Blake [2013] FamCAFC 133
Vallans & Vallans [2019] FamCAFC 260
Heath & HemmingNo. 2 (2011) FamCA 749
Johns & Jasapas [2016] FamCA 471
Wang & Dennison (No.2) [2009] FamCA 1251
In the Marriage of JD & BG (1994) 18 FLR 255
In the Marriage of Patsalou (1994) 18 FLR 4260
Number of paragraphs: 186 Date of last submission: 26 March 2021 Date of hearing: 8 & 9 February 2021 Place: Dandenong Counsel for the Applicant: Ms Agresta Solicitor for the Applicant: Cathleen Corridon & Associates Counsel for the Respondent: Mr Hale Solicitor for the Respondent: Peter Lynch Counsel for the Independent Children's Lawyer: Mr Marchetti Solicitor for the Independent Children's Lawyer: Bowlen Dunstan & Associates ORDERS
DGC 3440 of 2011 BETWEEN: MS ABERCROMBIE
Applicant
AND: MR DAMON
Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
8 APRIL 2021
THE COURT ORDERS THAT:
Parental Responsibility for X and Y
1.Subject to sub-paragraph (2) below, the applicant mother, Ms Abercrombie, have sole parental responsibility for the children, X born in 2007 (“X”), and Y born in 2011 (“Y”) (“the children”).
2.Prior to making any final determination with respect to the children’s long term care, welfare, and development, pursuant to sub-paragraph (a) above, the mother shall:
(a)advise the father in writing (including by way of SMS text message) of the necessity to make a decision for the children (or either them);
(b)seek the father’s written response (including by way of SMS text message) with respect to the decision to be made;
(c)consider any response provided by the father prior to making a final decision; and
(d)advise the father in writing (including by way of SMS text message), as soon as is reasonably practicable, of the decision taken.
Parenting and time spent arrangements
3.The children live with her mother.
4.The children spend time and communicate with the father at such times as agreed between the parties in writing and failing agreement as follows:
(a)during school term periods, subject to and conditional upon Order 5 below, from 4:00pm on Friday (or the conclusion of school) until the commencement of school (or 9.00am) on Monday, in each alternate weekend commencing on the first Friday of Term 1 in each school year;
(b)by telephone each Wednesday between 6:00pm to 6:30pm, with the Father to place the call to the mother’s mobile, or such nominated number as shall be advised by the mother, and the mother to afford the children privacy during the call;
(c)for half of each of the school term holiday as agreed between the parties and in default of agreement as follows:
(i)for the first half in odd numbered years, from the conclusion of school (or 4.00pm) on Friday on the last day of term until 4.00pm on the middle Friday of the school term holidays;
(ii)for the second half in even numbered years, from 4.00pm on the middle Friday of the school term holidays until the commencement of school on the first day of next term; and
(iii)once the school term resumes the father’s time pursuant to order 4(a) hereof recommence as if the cycle was not broken.
(d)for one half of the long summer holidays, as agreed between the parents and in default of agreement, on a week about basis to occur as follows:
(i)in even numbered years, for the first week (i.e. 7 consecutive nights) from the conclusion of school (or 4.00pm) on Friday on the last day of term four to 4.00pm on Friday being the 8th day following the last day of school term in term 4 and each alternate week thereafter;
(ii)in odd numbered years, for a week (i.e. 7 consecutive nights) from 4.00pm on the Friday, being the 8th day following the last day of school term in term 4 to 4.00pm the following Friday and each alternate week thereafter; and
(iii)once the school term resumes, the fathers’ time pursuant to order 4(a) herein is to recommence as if the cycle was not broken.
(e)in the event the children are not otherwise in the father’s care, from 5:00pm on the Saturday preceding Father’s Day to 6:00pm on Father’s Day;
(f)from 10:00am to 6:00pm on the father’s birthday if it falls on a non-school day and in the event it falls on a school day, from the conclusion of school to 7:00pm;
(g)on the children’s birthday for not less than two (2) hours on a school day and failing agreement from the conclusion of school to 6:00pm and not less than four (4) hours on a non-school day and failing agreement from 10:00am to 2:00pm;
(h)from 3:00pm on Christmas Day 2021 to 6:00pm on Boxing Day 2021 and each alternate year thereafter;
(i)from 10:00am on Christmas Eve 2022 to 3:00pm on Christmas Day 2022 and each alternate year thereafter;
(j)from 10:00am on Easter Sunday 2021 until 6:00pm on Easter Monday 2021 and each alternate year thereafter;
(k)from 10:00am on Easter Saturday 2022 to 10:00am on Easter Sunday 2022 and each alternate year thereafter; and
(l)from 10:00am on New Year’s Day, 1 January 2022 to 6.00pm on 2 January 2022 and each alternate year thereafter;
(m)from 10:00am on New Year’s Eve 2022 until 10.00am on New Year’s Day in 2023 and each alternate year thereafter; and
(n)at such further and other times as agreed between the parties in writing.
5.For the purpose of order 4(a) above, such time is subject to and conditional upon the father delivering the children to school on time as required on Monday mornings. In the event the father is not able to deliver the children on time on Monday mornings, then time in the alternate week arrangements shall conclude at 6.00pm on Sunday. In the event that the father is not able to drop the children off at school on Monday morning the father is to provide at least 24 hours’ notice to the mother prior to his time with the children commencing on the Friday.
6.The mother be at liberty to contact the children by telephone from 6.00pm to 6.30 pm on Wednesday during the time the children are in the father’s care pursuant to order 4(c) and (d) herein with the mother to call the children’s phones and the father to afford the children privacy during the call.
7.In the event that the children are not in the mother’s care, the father’s time with the children be suspended as follows:
(a)on Mother’s Day weekend from 5:00pm on the Saturday preceding Mother’s Day until 6:00pm on Mother’s Day;
(b)from 10:00am to 6:00pm on the mother’s birthday if it falls on a non-school day and in the event it falls on a school day, from the conclusion of school to 7:00pm;
(c)on the children’s birthday and the children’s siblings birthdays from the conclusion of school to 6:30pm and not less than four (4) hours on a non-school day and failing agreement from 10:00am to 2:00pm;
(d)in 2021, from 10:00am on Christmas Eve until 3.00 pm on Christmas Day and each alternate year thereafter;
(e)in 2022, from 3.00pm on Christmas Day until 6:00pm on Boxing Day and each alternate year thereafter;
(f)in 2021, from 10:00am on Easter Saturday to 10:00am on Easter Sunday and each alternate year thereafter;
(g)in 2022, from 10:00am on Easter Sunday to 6:00pm on Easter Monday and each alternate year thereafter;
(h)in 2021, from 10:00am on New Year’s Eve until 10:00am on New Year’s Day in 2022 and each alternate year thereafter; and
(i)in 2022, from 10:00am on New Year’s Day until 6.00pm 2 January in 2023 and each alternate year thereafter.
Changeover
8.Changeover, save as may be agreed between the parents in writing (including by way of SMS text message), shall occur as follows:
(a)from the children’s schools and when school is not in session, in the C McDonalds/Woolworths car park on the corner of D Street, Suburb E, at the commencement of the children’s time with their father;
(b)at Suburb F Park, at G Street, Suburb F, at the conclusion of the children’s time with their father; and
(c)both parties be at liberty to use a nominee for the purpose of changeover.
Communication
9.The parents shall forthwith utilise the ‘Our Family Wizard’ app, at their individual expense, to assist with communication regarding the children’s health, education and progress.
10.The parents shall authorise and direct the schools at which the children attend to forward copies of reports, photographs, newsletters and the like to the other, at the sole expense of the recipient.
11.The parents keep the other advised in writing of their respective contact details.
12.The parents shall promptly advise the other parent of any serious illness, accident or injury suffered by the children, and keep the other advised of any medical and/or health issues concerning the children, and shall authorise and direct any medical practitioner or the like upon whom the children attend to discuss the children’s medical condition with, and forward copies of any reports and the like to, the parties; and, each shall implement and adhere to any treatment regime specified by the children’s treating medical practitioner/s; and, each shall attend any education sessions that will facilitate care of the children;
13.The parents shall be at liberty to attend the children’s schools on such occasions as would be usual for a parent to attend, including but not limited to parent/teacher interviews, sports events, school concerts and the like and neither party shall approach the other, unless otherwise agree between the parties by the exchange of text message.
14.The parents, their agents and/or servants be and are hereby restrained from:
(a)denigrating the other in the presence or hearing of the children;
(b)discussing these proceedings in the presence or hearing of the children;
15.Each of the parents do all things necessary to enrol in and complete as soon as practicable a ‘Parenting After Separation’ program at ‘H Centre, Suburb J or Suburb EE, at their respective cost, and to provide the other with a certificate of completion of same.
16.The parties be at liberty to communicate with the children’s treating medical practitioners and/or treating professionals who is/are treating the children and this Order acts as an authority for same.
General
17.The appointment of the Independent Children’s Lawyer be discharged.
18.All extant applications be otherwise dismissed and removed from the pending cases list.
19.Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
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 under the pseudonym Abercrombie & Damon (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
“Children begin by loving their parents, as they grow older, they judge them, sometimes they forgive them.”[1]
INTRODUCTION
[1] See quote referred to in father’s final submissions filed 21 March 2021. However as will be revealed later in these reasons in light of his own evidence the father may still not appreciate how prescient that quote was.
These proceedings concern a dispute over parenting orders, as that term is defined in the Family Law Act1975 (Cth) (“the Act”), for X born in 2007 and Y born in 2011 (“the children”).
The applicant in these proceedings is Ms Abercrombie (“the mother”). The mother is thirty nine years old lives in Suburb BB, has re-partnered and has four other children all of whom are under eight years old. The respondent is Mr Damon (“the father”). The father is forty seven years old and lives in Suburb K. Neither of the parties are employed and have not been for some time.
However, for at least the last eight years these parties have been involved in conflict and litigation in one court or another about the children. These proceedings have highlighted that conflict, the unhappiness and the mistrust between the parties, and that there is little obvious prospect of that changing. The children are caught in the middle. For the children’s sake, that conflict must stop.
Inevitably when parents are in conflict each would like to be able to attribute the reason for the conflict totally to the other party. So it was in this case. This decision has been made more difficult due to the parties involved and that, if history is any indication of the future, there is nothing ideal about any arrangement and the situation for the children is not going to improve.
Nonetheless, for the reasons set out below, the best interests of both of the children are more likely to be promoted by final orders as proposed by the Independent Children’s Lawyer (except where indicated).
BACKGROUND
To put the current proceedings in context, it is necessary to set out the following background.
The parties commenced their relationship in 2005 (when the mother was in her early twenties and the father in his early thirties) and lived at the father’s property in Suburb JJ. They married in 2006 and separated (for the first time) in December 2006 before reconciling in February 2007.
The oldest child, X was born in 2007. After this, there was a second separation and then another reconciliation at the end of that year. The parties finally separated in 2008 and the mother and X eventually moved to rental accommodation whilst the father remained living in the Suburb JJ property. The father subsequently purchased a property in Suburb K.
The father’s mother died in 2010. It is not contested that the parties on at least one occasion after separation, resumed a sexual relationship. Y, the youngest child was born in 2011 and has since then (and at least until the trial of these proceedings) been regarded as the biological child of the parties.
The father filed a divorce order application in October 2011. A divorce order was subsequently made in December 2011. As had been the case since separation the children continued to spend time with the father which the parties negotiated between themselves.
On 25 September 2012, the mother told the father she had a “new man”. On 28 September 2012, the father attended the mother’s home and left smashed photo frames, other mementos and various self-centred declarations (of inter alia his love for the mother) in shaving cream on the walls at the front of her house (Exhibit A5).
In November 2012, the father sought an intervention order against the mother’s new partner, Mr B. However, this application was withdrawn by the father in December 2012. By that time the mother and the children had moved to live with Mr B.
In January 2013, the mother commenced proceedings for property settlement orders under the Act. By this time, the father had moved to what he has described as his “dream home” in Suburb K. Prior to the mother’s application coming before the Court for the first time (and the father filing a response) the mother and father were involved in a heated exchanged outside the eldest child’s school (on the child’s first day at school). They continued that exchange later on the roadside (as the mother had pulled over as she was concerned that father would find out where she lived) during which the mother said “keep your god damn fucking house, alright…and if you go after my kids, Mr Damon…I swear to God…I will destroy you.”
The father then filed a response to the mother’s application on 27 February 2013 and also sought parenting orders for the children. The parties filed an amended application and an amended response the following month.
When the matter first came before the Court in March 2013 both parties were represented and there were interim orders made. The father made an application for another intervention order against Mr B on 16 April 2013. The parties attended a child inclusive conference on 19 April 2013. On 24 April 2013 the mother sought an intervention orders against the father. In the shadow of these developments, final property orders were made by consent in May 2013.
On 10 July 2013, there were further interim parenting orders made and a staged increase in the time the children spent time with the father. The proceedings were adjourned to January 2014 after the release of a family report which was also ordered that day.
By the end of July 2013, the father was no longer represented. Under the regime of the interim orders made in July 2013 the first time the children were to spend overnight time with the father was October 2013. Shortly after this the Department of Health and Human Services (as it was then known) (“the Department”) became involved with the family and the children.
As a result of this, the children’s time with the father stopped and the mother filed an application in a case to suspend the interim orders made on 10 July 2013. Before that application came before the Court the parties attended interviews for the family report ordered in July 2013. The mother’s application in a case was dismissed in December 2013 and the family report was released later the same month.
In January 2014, the parties’ dispute over the parenting was fixed for trial. In February 2014, the father applied to vary the intervention order made against him. In April 2014, there was a further application for an invention order by the father against Mr B. The mother filed an amended application for parenting orders in July 2014 and later that month, when the father was unrepresented, there were final parenting orders made by consent. Those orders provided for the parties to have equal shared parental responsibility, the children to live with the mother and to spend substantial and significant time with the father.
Despite this, the conflict between the parties was not quelled for very long. In July 2015, the father filed a contravention application. This application was ultimately dismissed in December 2015 and the father was ordered to pay the mother’s costs.
Subsequently, the parties entered a parenting plan during mediation in 2017. Later, in February 2018, the father filed an application to vary the final parenting orders made in July 2014. The mother filed a response to that application in March 2018 and the father’s application was dismissed in April 2018. Also in April 2018, the Department commenced proceedings in the Victorian Children’s Court and an interim accommodation order was made which provided for the children to live with the mother.
On 29 May 2018, a family preservation order was made in the Victorian Children’s Court for twelve months which continued those arrangements. Almost a year later in May 2019, the Department applied to extend that order so inter alia the father could follow the recommendations of a psychiatric report prepared during those proceedings by Dr M. After four other appearances in the Victorian Children’s Court that application was eventually struck out.
By that time the father had sought a third intervention order against Mr B. The mother had also sought a further intervention order against the father. On 24 September 2019, the mother filed the application under the Act that commenced these proceedings.
The procedural background since then is set out in the decisions of the Court published as Abercrombie & Damon [2019] FCCA 3543 (for the interim orders made 27 November 2019) and Abercrombie & Damon (No.2) [2020] FCCA 910 (for the interim orders made 2 April 2020). The dispute over parenting orders for the children was fixed for the trial on 8 February 2021.
In the weeks leading up to the trial the father sent a number of text messages to the mother (Exhibit A3) and an email to the solicitors involved in the proceedings (Exhibit ICL2).
At the trial, the mother was represented by Ms Agresta of Counsel. The father, as a result of an order under s.102NA of the Act, was represented by Mr Hale of Counsel. Mr Marchetti of Counsel appeared on behalf of the Independent Children’s Lawyer. The trial started on 8 February 2021 and continued on 9 February 2021. At the conclusion of the evidence on that day, directions were made for the parties to file written submissions after which the judgment was reserved.
MATERIAL RELIED ON
At the commencement of the trial, Counsel for the mother told the Court that her client relied on the following:
(a)the case outline filed on 3 February 2021 (Exhibit A1); and
(b)her affidavit filed on 11 January 2021 (Exhibit A2);
The mother also relied on a number of exhibits tendered during the trial which were:
(i)a bundle of text messages exchanges between the mother and the father (Exhibit A3);
(ii)an email from L Medical Centre dated 9 April 2018 (Exhibit A4); and
(iii)a bundle of photos (Exhibit A5).
Counsel for the father told the Court at the beginning of the trial that his client relied on the following:
(a)the case outline filed on 3 February 2021 (Exhibit R1); and
(b)his affidavit filed on 25 January 2021 (Exhibit R5);
Counsel for the father also tendered a number of exhibits during the trial which were:
(i)the first recording dated 1 February 2021 (Exhibit R2);
(ii)the second recording dated 4 February 2013 (Exhibit R3);
(iii)applications for an intervention orders dated 22 October 2018 (Exhibit R4);
(iv)a letter prepared by Ms N and dated 5 December 2013 (Exhibit R6).
The father had filed what purported to be a notice containing objections to the mother’s affidavit on 4 February 2021 which it appeared he had prepared himself. As Counsel for the father conceded, given the provisions of s.69ZT of the Act, these objections were not pressed.
Counsel for the Independent Children’s Lawyer told the Court at the beginning of the trial that his client relied on the case outline filed on 3 February 2021 and the material referred to therein (Exhibit ICL1). The Independent Children’s Lawyer also relied on an exhibit tendered during the trial being an email from the father dated 27 January 2021 (Exhibit ICL2).
INITIAL POSITION OF THE PARTIES
The mother’s position
In her case outline filed on 3 February 2021, the mother set out the final orders she sought which were as follows:
1)The Final Parenting Orders dated 28 July 2014 be discharged.
2)The children X born in 2007 and Y born in 2011, collectively (“the children”) live with the Mother.
3)The Mother have sole parental responsibility for the children, with the Mother to do the following prior to making the sole ultimate decision with respect to any issue relating to the long term care, welfare and development of the children:
(a) Advise the Father in writing by way of text message of the decision to be made;
(b) Seek the Father’s written response by way of text message in relation to her intended decision;
(c) Consider by reference to the best interests of the children any such response by the Father prior to making a final decision; and
(d) Advise the Father in writing by way of text message as soon as is reasonably practicable of her final decision.
4)The Father spend time and communicate with the children at such times as agreed between the parties in writing and failing agreement, as follows:
(a) From 4:00pm on Friday (or the conclusion of school) to 6:00pm on Sunday and each alternate weekend thereafter;
(b) By telephone each Wednesday between 6:00pm to 6:30pm, with the Father to place the call to the Mother’s mobile or nominated number and the Mother to afford the children privacy during the call;
(c) From 5:00pm on the Saturday preceding Father’s Day to 6:00pm on Father’s Day if it falls on a weekend that the Father isn’t ordinarily spending time with the children;
(d) From 10:00am to 6:00pm on the Father’s Birthday if it falls on a non-school day and in the event it falls on a school day, from the conclusion of school to 7:00pm;
(e) On the children’s birthday for not less than two (2) hours on a school day and failing agreement from the conclusion of school to 6:00pm and not less than four (4) hours on a non-school day and failing agreement from 10:00am to 2:00pm;
(f) From 3:00pm on Christmas Day 2021 to 6:00pm on Boxing Day 2021 and each alternate year thereafter;
(g) From 10:00am on Christmas Eve 2022 to 6:00pm on Christmas Day 2022 and each alternate year thereafter;
(h) From 10:00am on Easter Sunday 2021 until 6:00pm on Easter Monday 2021 and each alternate year thereafter;
(i) From 10:00am on Easter Saturday 2022 to 10:00am on Easter Sunday 2022 and each alternate year thereafter; and
(j) From 10:00am on New Year’s Day, 1 January 2022 to 3.00pm on 2 January 2022 and each alternate year thereafter;
(k) From 10:00am on New Year’s Eve 2022 until 10.00am on New Year’s Day in 2023 and each alternate year thereafter; and
(l) At such further and other times as agreed between the parties in writing.
5)The Father spend time and communicate with the children during the school holidays as agreed between the parties in writing and failing agreement as follows:
(a) From the conclusion of the last day of school on Friday to 6:00pm on Sunday and each alternate weekend thereafter, with such time on Friday from thereon to occur from 10:00am;
(b) In the alternate week from 10:00am on Tuesday to 6:00pm on Thursday and each alternate week thereafter;
(c) At such further and other times as agreed between the parties in writing; and
(d) Once the school term resumes, the Father’s time pursuant to Order 4(a) herein is to recommence as if the cycle was not broken.
6)Changeover for all time spent between the children and the Father shall occur as follows:
(a) From the children’s schools and when school is not in session, in the C McDonalds / Woolworths car park on the corner of D Street, Suburb E, at the commencement of all time;
(b) At Suburb F Park, at G Street, Suburb F, at the conclusion of all time;
(c) Both parties be at liberty to use a nominee for the purposes of changeover (excluding the Mother’s partner Mr B);
(d) Neither party shall approach the other save to ensure the children’s welfare and orderly transition, unless otherwise agreed between the parties by the exchange of text message; and
(e) As otherwise agreed between the Mother and Father in writing, by the exchange of text messages.
7)The parties communicate by way of text message with respect to all issues in relation to the children.
8)In the event of the occurrence of a family event such as a wedding, funeral or milestone birthday and upon the parties giving fourteen (14) days written notice to the other of such event, the parties shall take all reasonable and proper steps to ensure the children are made available to the other parent for the purpose of attending such event.
9)In the event that the children are not in the Mother’s care, the Father’s time with the children be suspended as follows:
(a) On Mother’s Day weekend from 5:00pm on the Saturday preceding Mother’s Day until 6:00pm on Mother’s Day;
(b) From 10:00am to 6:00pm on the Mother’s Birthday if it falls on a non-school day and in the event it falls on a school day, from the conclusion of school to 7:00pm; and
(c) On the children’s birthday and the children’s siblings birthdays from the conclusion of school to 6:30pm and not less than four (4) hours on a non-school day and failing agreement from 10:00am to 2:00pm;
(d) In 2021, from 10:00am on Christmas Eve until 3.00 pm on Christmas Day and each alternate year thereafter;
(e) In 2022, from 3.00pm on Christmas Day until 6:00pm on Boxing Day and each alternate year thereafter;
(f) In 2021, from 10:00am on Easter Saturday to 10:00am on Easter Sunday and each alternate year thereafter;
(g) In 2022, from 10:00am on Easter Sunday to 6:00pm on Easter Monday and each alternate year thereafter;
(h) In 2021, from 10:00am on New Years Eve until 10:00am on New Years Day in 2022 and each alternate year thereafter; and
(i) In 2022, From 10:00am on New Years Day until 6.00pm 2 January in 2023 and each alternate year thereafter.
10)The Mother be at liberty to contact the children by telephone from 6:00pm to 6:30pm on Saturday and Wednesday during the time the children are in the Father’s care pursuant to Order 4(a), 5(a) and 5(b) herein, with the Mother to call the children’s phones and the Father to afford the children privacy during the call.
11)The parties be at liberty to communicate with the children’s treating medical practitioners and/or treating professionals who is/are treating the children and this Order acts as an authority for same.
12)Each party will follow all reasonable directions and recommendations of any medical or allied health professionals involved with the children, including arranging and attending appointments as required.
13)The parties shall advise the other of any serious illness or injury suffered by the children when in their care as soon as practicable following the onset of any illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other party to obtain information directly from any treating medical practitioners.
14)The parties be at liberty to receive from the children’s school, at their own expense, a copy of the children’s school reports, photographs, newsletters and all other information ordinarily provided by the school to parents.
15)The parties be permitted to attend all school occasions, including but not limited to, parent teacher interviews, school concerts, sports days and the like and neither party shall approach the other, unless otherwise agreed between the parties by the exchange of text message.
16)The parties be at liberty to provide a copy of these Orders to any relevant service provider including but not limited to, the children’s school, general practitioner, counsellor or therapist etc.
17)Each party be and is hereby restrained from denigrating any other party in these proceedings or any member of any other party’s family in the presence of hearing of the children or allowing any other person to do so.
18)Each party be and is hereby restrained from discussing these proceedings or any matters in dispute arising from these proceedings in the presence of hearing of the children.
19)The parties keep each other informed of the address and mobile telephone numbers for necessary communication and advise the other of any changes within 24 hours.
20)The parties do acts and things necessary to continue to attend upon the child Y's diabetes specialist/s, to continue to obtain information, education and training about her diabetes medical condition, including any and all medication required to be taken by her and follow all recommendations made her diabetes specialist/s with respect to the appropriate management and treatment of her diabetes.
21)In the event the parties wish to travel interstate with the children over the school holiday period, the party intending to travel, provide the other party with at least 14 days notice for interstate travel and at least 28 days notice for overseas travel and provide the other party with all travel documentation, including flight details. The travelling party ensures that the children are in contact with the other parent once in each seven-day period during the period of travel.
22)In the event the parties are unable to reach an agreement with respect to any variation to these Orders, they shall first undertake family Mediation prior to making any application to the Court.
23)That all applications be otherwise dismissed and removed from the pending cases list.
24)Such further and other orders as this Honourable Court deems appropriate.
25)Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. (Exhibit A1)
The father’s position
Counsel for the father at the start of the trial told the Court that final orders his client sought were:
The father’s primary position is:
1.That the parents have equal shared parental responsibility for the children.
2.That the children live with the father.
3.That the children spend every 2nd weekend and half school holidays with the mother.
In the alternate to 2 and 3 above:
4.The children live with the mother.
5.That the children spend time with the father in accordance with the recommendations of the Family Report, namely:
a.2 out of every 3 weekends from after school on the Friday until start of school on the Monday.
b.In the fortnight between referred to in a. above on the Thursday from after school until start of school on the Friday.
c.Half of all school holidays.
d.Father’s day.
e.Each of the children’s birthdays and the father’s birthday.
f.From 5pm Christmas Eve until 5pm Christmas Day.
g.Other special days.
6.That for purpose of changeover if not at the school then changeover be at the letterbox of the parents’ home who has the child in their care.
7.That the parents keep and maintain a full communication diary that must include full details regarding Y’s diabetes including any issues, pump levels adjustments (insulin to carbohydrate ratio) and all L Medical appointments sated giving each parent plenty of notice to be able to attend. (Exhibit R1)
The Independent Children’s Lawyer’s position
Counsel for the Independent Children’s Lawyer told the Court that, subject to the evidence, the preliminary view of his instructor was that the final orders sought were:
(a)The Father and the Mother have equal shared parental responsibility for X and Y.
(b)X and Y live with the Mother.
(c)X and Y spend time and communicate with the Father as follows:-
(i) During all gazetted Victorian school term periods in each year, for 2 out of every 3 weekends, from the conclusion of school (or 3.30pm) on Friday to the commencement of school (or 8.30am) on Monday, unless otherwise agreed between the Mother and Father;
(ii) During all gazetted Victorian school term periods in each year, in the 3rd week of each 3-week cycle, from the conclusion of school (or 3.30pm) on Wednesday to the commencement of school (or 8.30am) on Thursday, unless otherwise agreed between the Mother and Father;
(iii) During all gazetted Victorian school term holiday periods in terms 1, 2 and 3 of each year, from the conclusion of school (or 3.30pm) on the last day of each school term period until 12.00pm on the middle Saturday, unless otherwise agreed between the Mother and Father;
(iv) During all gazetted Victorian long Christmas long holidays in December/January of each year, for one half of each of these periods, as agreed between the Mother and failing agreement for the first half in 2021 and each alternative year thereafter and the second half in 2022 and each alternative year thereafter;
(v) From 10.00am on Good Friday to 4.00pm on Easter Sunday in 2021 and each alternate year thereafter, unless otherwise agreed between the Mother and Father;
(vi) On the children’s birthdays (X and Y), from the conclusion of school (or 3.30pm) to 7.00pm if on a school day and from 12.00pm to 4.00pm if on a non-school day;
(vii)On the Father’s birthday from the conclusion of school (or 3.30pm) to 7.00pm if on a school day and from 12.00pm to 4.00pm if on a non-school day;
(viii)On Father’s Day in each year, from 5.00pm on the Saturday prior to Father’s Day to 5.00pm on Father’s Day; and
(ix) On such other and further days and times, as agreed between the Father and Mother in writing, by the exchange of text messages and/or email.
(d)Changeover for all time spent detailed in 10 (c) (i) – (ix) herein, take place at the children’s schools at all school times and from the Suburb KK sports stadium (a halfway point roughly halfway between the respective homes of the Mother and Father) at all non-school times.
(e)The Mother advise the Father the event X and/or Y suffer any serious medical injury or serious illness, as soon as practicable after that serious medical injury or serious illness occurs and the Father shall be authorised to speak to any treating medical professional or specialist, in relation to any serious medical injury or illness suffered by X and/or Y and this Order shall serve as authority for same.
(f)Within 14 days, the Mother do all things necessary to contact the school/s of X and/or Y and authorise the Father to obtain copies of periodical school reports for X and/or Y, at his expense, if any and this Order shall serve as authority for this.
(g)The Mother and Father be restrained by Injunction from:-
(i) Denigrating each other, within the presence or hearing of X and/or Y, either personally or through her servants or agents;
(ii) Discussing any aspect of this Court proceeding or any Interim Orders or the conflict between the parents, or providing any material in relating to these Court Proceedings, within the hearing or presence of X and/or Y, either personally or through her servants or agents; and
(iii) Consuming illicit and/or non-prescription substances 48 hours prior to during any period in which X and/or Y are in their respective care.
(h)Within 14 days, the Father and Mother do all things necessary to enrol in ‘Tuning into Kids/Teens’ Program and when possible due to the current Covid-19 Pandemic, attend at and complete this Program, at his/her expense and upon completion, provide a certificate of completion to the other parties.
(i)Within 14 days of any Final Orders, the Mother and Father do all things necessary to enrol in a ‘Post Separation Parenting Program’ at either a local Family Relationships Centre, a local O Counselling organisation or a local T Family Services organisation and thereafter attend at and complete such program and provide a certificate of completion of this program to the other parent, once available.
(j)Within 14 days of any Final Orders, the Mother and Father do all things necessary to download the ‘Our Family Wizard’ parenting communication application available online and thereafter utilise this parenting communication application to convey and communicate only issues in relation to the welfare of X and/or Y.
(k)The Father and Mother follow all lawful directions of Y's Type 1 Diabetes medical specialists at L Medical Centre or any other specialist organisation, in relation to her treatment and medication and related medical issues associated with this condition.
(l)The appointment of the Independent Children’s Lawyer made by Court Order on 27 November 2019 is hereby discharged. (Exhibit ICL1)
S.11F REPORT
The parties relied on a memorandum prepared as a result of an order pursuant to s.11F of the Act on 27 November 2019. The memorandum was dated 13 March 2020 and prepared by Ms P, a family consultant, following a conference with the parents and the children on 11 March 2020.
The family consultant was not required for cross examination and the contents of the memorandum, which was also taken into account when the interim orders were made on 2 April 2020, is part of the evidence before the Court.
CONTACT SUPERVISOR
Ms Q filed an affidavit on 14 May 2020 annexing a report concerning the period when the children spent supervised time with the father pursuant to interim orders made earlier in these proceedings.
Ms Q was not required for cross examination and the details of her report, which has been taken into evidence, were not controversial.
PSYCHIATRIC REPORT
Pursuant to orders made 27 November 2019, the father attended on Dr R (“the Psychiatrist”) for the preparation of an Independent Psychiatric Assessment (“the Psychiatric Report”). The Psychiatrist had access to previous psychiatric reports on the father prepared for the Department when the parties were involved in the Victorian Children’s Court.
The Psychiatric Report contained the following diagnosis on the father of “Social Anxiety Disorder and Obsessive Compulsive Disorder” with “Borderline Personality traits”. The Psychiatrist said in the Report dated 11 February 2020:
In my opinion, Mr Damon's apparently difficult presentations are an aspect of his Obsessive-Compulsive Personality Disorder which results in him being conscientious, scrupulous and inflexible about matters of morality, ethics or values manifesting rigidity and stubbornness and feeling a need for control over matters over which one cannot necessarily succeed. (emphasis added)
The Psychiatrist was not required for cross examination and I accept his evidence.
THE REPORT
In preparation for the trial, the Court made an order pursuant to s.62G(2) of the Act for the preparation of a family report (“the Report”). The Report was prepared (by the same report writer who had prepared the earlier family report in late 2013) following interviews with the parties and the children. The Report was dated 11 December 2020.
The Report provided an “Evaluation” which included the following:
111.The dispute is whether X and Y live with Ms Abercrombie or with Mr Damon or whether they live in a shared care arrangement. Mr Damon believed he is entitled to have X and Y live with him or at least share their care. This was as he believed there have been injustices imposed on him by DHHS based on allegations made by Ms Abercrombie as well as information obtained by DHHS from Ms S, a social work clinician at L Hospital where Y is treated for her diabetes. A new issue in dispute since the first family report dated 10 January 2014 is the issue of family violence as alleged by Ms Abercrombie dating back to when they were in a relationship prior to the previous family report. At the time of the previous family report interviews, Ms Abercrombie stated clearly to me, “… there was no violence but a lot of arguing”. Additional issues include allegations of child abuse, Mr Damon’s management of Y’s diabetes, Christmas Day contact and changeovers at the commencement of contact.
…
113.X and Y missed about two years of their childhoods in not being able to spend time with Mr Damon. While DHHS had made a condition X and Y could spend supervised time with Mr Damon if they requested. What is of concern is that how could X and Y say they wanted to spend time with Mr Damon when they were very aware, they had clearly been stopped from doing so. In addition, X and Y would have been very aware of the high level of conflict between Ms Abercrombie and Mr Damon as they had been moving between them for the previous five plus years. Further to this, DHHS then issued a Protection Application with the matter going through the Children’s Court. It is my view that X and Y would have been extremely reluctant to say they wanted to spend time with Mr Damon being aware of the hostilities directed toward Mr Damon. Y did say once that she would spend time with Mr Damon which happened and as I understand went well but then Y did not request this again. It is my view that this leaves concerns about whether X and Y were also unduly influenced by Ms Abercrombie not to spend time with Mr Damon. If Ms Abercrombie had supported and encouraged X and Y to spend time with Mr Damon then this would have happened.
114.It is my view that firstly, DHHS workers should have been aware that given the circumstances between Ms Abercrombie and Mr Damon, X and Y were not going to request to see Mr Damon but after Y did on one occasion which went well, it did not happen again. It is of concern that this did not raise questions about what was happening to stop X and Y requesting to spend time with Mr Damon. Secondly, it appeared that the allegations made by Ms Abercrombie about Mr Damon were accepted without testing of these allegations, for example, Mr Damon has maintained he has not been violent.
115.It is my view that it is still not clear as to why DHHS stopped X and Y from spending time with Mr Damon nor why a Protection Application (PA) was issued, particularly if it is taken into account the concerns which were used for the PA as well as the conditions made by DHHS as part of the Preservation Order. It is my view that while there may have been a concern about Mr Damon refusing to agree to Y having a pump for her diabetes, his refusal was based on an explanation given to him that for a pump to work effectively for the child, the parents need to be able to communicate which was not happening between him and Ms Abercrombie (which Dr M said that was a reasonable explanation). On the other hand, Ms Abercrombie may have felt frustrated about not being able to obtain the pump for Y. In my view, it may have served X and Y better if DHHS had investigated and assessed the high level of conflict between Ms Abercrombie and Mr Damon and how they could be assisted to minimise this to enable Y to have the treatment which seemed to be best for her. The concern is that there was no investigation about the high level of conflict nor about Ms Abercrombie’s allegations Mr Damon had perpetrated family violence, but these allegations were accepted too readily with the result X and Y have missed out on two years of their childhoods spending time with Mr Damon. Perhaps if DHHS had taken into account Ms Abercrombie’s statement in the previous Family Report, “There was no violence but a lot of arguing”, there may not have been a need for a Preservation Order.
….
The Report (under the same heading of ‘Evaluation’) then went on to further discuss and critique the Department’s intervention (without access to all the Department’s records) and the reasons for same before turning to an assessment of the children (and the parties).
119.Both X and Y said they would be fine with the current arrangements continuing but they were unable to express any positive feelings about a change to these arrangements. It is my view that X and Y have been subjected to enough questioning and just want to be able to settle down in a routine where they are able to move between both parents. It is my view they would each be quite wary about answering how they feel given that they missed out on about two years of their lives without Mr Damon. It is my view that while X is quite mature for his age, he needs to be listened to but other factors also need to be taken into account. It is my view that Y also needs to be listened to but again other factors need to be taken into account.
…
121.It is my view that a shared care living arrangement would not work, firstly, given the distance between homes, secondly, given the high level of conflict and lack of communication between Ms Abercrombie and Mr Damon, they would be unable to assist X and Y to adjust to such an arrangement.
Finally, towards the end of that section of the ‘Evaluation’ the Report provided:
122.While Mr Damon may feel frustrated and that he was punished as a result of DHHS intervention, he also needs to appreciate that X and Y were not the cause of this and in my view, they also suffered as a result. By assuming it would automatically make everything right or justified by X and Y living with him it may be that this may result in them feeling guilty or guiltier and distressed if a change in living arrangements happened. It is about the adults in this case gaining insight into how X and Y may have felt through that two-year period and in fact since the separation given the ongoing high level of conflict between Ms Abercrombie and Mr Damon. It is my view that X and Y feel anxious as a result. It is in my view quite difficult to establish why suddenly in 2018 X and Y were stopped from spending time with Mr Damon when it had been ongoing over the previous four years. There is no trust between Ms Abercrombie and Mr Damon, they each feel justified in continuing the conflict. They each accuse the other of using Y’s diabetes needs to manipulate the other. They need to stop using this as a form of manipulation.
123.It is my view that at this time until there is a testing of the allegations by Ms Abercrombie, that Ms Abercrombie and Mr Damon should share parental responsibilities for X and Y but they need to put aside their own unresolved issues to discuss issues about X and Y. It is my view they need to use an app such as ‘Our Family Wizard’ which provides a safe and neutral space for communication.
124.It is my view that at this time, the overall emotional needs of X and Y are not being met while the high level of conflict continues between Ms Abercrombie and Mr Damon. They should attend a post separation parenting program to assist them to gain insight into how their conflict affects X and Y and how to use strategies to minimise this conflict.
125.It is my view that at this time and until the allegations can be tested, X and Y spend time with Mr Damon two out of every three weekends from Friday after school to the start of school Monday as well as in the fortnight in between on the Thursday from after school to the start of school Friday. This extra time allows for some make up time the children missed out on over two years, as well as half of all school holidays and times on the special days through the year.
The Report then went on to make the following “Recommendations”:
128.It is recommended at this time that Ms Abercrombie and Mr Damon share parental responsibilities for X and Y.
129.It is recommended that at this time X and Y live with Ms Abercrombie.
130.It is recommended at this time that until the allegations can be tested, X and Y spend time with Mr Damon two out of every three weekends from Friday after school to the start of school Monday as well as in the fortnight in between on the Thursday from after school to the start of school Friday, as well as half of all school holidays and times on the special days through the year.
131.It is recommended that Ms Abercrombie and Mr Damon attend a post separation parenting program at an accredited agency such as a Family Relationship Centre, O Counselling or T Family Services.
132.It is recommended that Ms Abercrombie and Mr Damon use an App such as ‘Our Family Wizard’ or other such app available online to assist with their communication.
EVIDENCE AT TRIAL
In Sanders & Sanders (1976) FLC 90-078, it was said:
[R]estraint is called for in expressing views about the parties because of the need to have regard to the preservation of the ongoing relationship between the parties and between parents and children.
The Court is reluctant to make an adverse credit finding in respect to a party’s credit in parenting proceedings: see Adamson & Adamson (2014) FLC 93-622 at 79,703. However, in order to be able to determine this dispute over parenting orders for the children, where those otherwise responsible have asked the Court to make decisions, affecting those children, it is necessary to form an assessment of the character and the personality of the parties in this case.
Both parties sought to attack the conduct and communication of the other. As has already been noted, the father, had in the days leading up to the trial, sent a series of text messages to the mother. Due to the existing interim intervention order, Counsel for the father sought a certificate pursuant to s.128 of the Evidence Act 1995 (Cth) for his client.
It is of course trite to observe that giving evidence can be a stressful experience. However, even allowing for that, the father (even with the protection of that certificate) was a truculent witness who did little to conceal his sense of grievance. Suffice it to say that the father’s presentation was entirely congruent with the Psychiatrist’s observations referred to earlier. The father’s credibility, for reasons to which I will return, was called into question by his own evidence on important issues before the Court and was found wanting.
One example at this stage will suffice to illustrate why that is the case. During the course of cross-examination the father asked the Court to accept that he now believed that Y may not be his biological child. This was despite the fact that he had never raised the issue formally in either these proceedings or when the previous final orders were made in 2014. The father asked the Court to accept that he had been “suspicious” since 2015 and having thought “long and hard” about the matter decided to raise it formally only in cross-examination. Such an explanation strains the bounds of credulity.
Yet when asked why he raised the issue only during cross examination the father said that he did so to cast doubt on the mother’s credibility. Given the history of this matter and that on the father’s own case he has been involved in a war with the Department (with whom he said that the mother had conspired) his latter stated reasons as to why he raised the matter are at least more plausible than the claims discussed in the previous paragraph but are just as sad..
By way of contrast the mother gave her evidence carefully and (save for two occasions) made more appropriate concessions. Unlike the father, she was not defensive or confrontational with the cross examiner. Therefore, in approaching the father’s evidence where it conflicts with that of the mother unless it is supported by independent documentation, I prefer her evidence
I do not intend to recite all of the evidence at trial. However, all of that evidence, the material that the parties relied on, the exhibits before the Court, and the submissions made by the parties has been considered and taken into account.
The mother’s evidence
The mother gave evidence and was cross examined. The mother, who lives in Suburb BB and is engaged in home duties, adopted her affidavit filed on 11 January 2021 (Exhibit A2).
The mother was asked questions in cross examination by Counsel for the father about a recording of an evidently distressed Y when the mother was trying to change her diabetic treatment line (Exhibit R2). The mother acknowledged that the father has been able to change the line previously. The mother admitted that prior to the recording she had not soaked the dressing (in accordance with medical advice she had been given) before she attempted to remove it and as the Independent Children’s Lawyer submitted this behaviour and her evidence about it did not cast her in a good light.
Counsel for the father also took the mother to a recording of the confrontation with the father in 2013 after X’ first day at school (Exhibit R3). The mother’s evidence in response made clear she was both frustrated and scared at the time. The mother denied that she had worked with the Department to stop the father seeing the children since then.
The mother was asked whether she believed that the children had a close and loving relationship with the father. The mother said she “believes so”. The mother denied the allegation that she did not encourage the children’s relationship with the father.
In response to questions from Counsel for the Independent Children’s Lawyer the mother told the Court that the children’s relationship with the father was “good” and that both children “absolutely” loved the father. The mother agreed that the children had been affected by the interruption to their time with the father during the period of the Department’s intervention. The mother claimed that she had questioned the Department’s position during this time but asserted unconvincingly that it “did not cross [her] mind” that she could force the children to spend time with the father.
In answer to questions from Counsel for the Independent Children’s Lawyer the mother told the Court that communication with the father was “poor” and it had always been “a struggle” even during their marriage.
The mother was asked questions by Counsel for the Independent Children’s Lawyer about the confrontation with the father on X’ first day at school and said she was “shaken, “on edge” and “angry” at the time. The mother admitted that she did not mention this incident to the report writer when she was first interviewed in 2013 but also said that it was the report writer’s “point of view” that she had not raised any family violence concerns at that time.
The mother told the Court that the time the children had spent with the father after the Department’s intervention had ended, had “allayed” her concerns but she still had some concerns about his mental health and experiences him as “very intense”.
The mother agreed that the father had done the necessary training for Y’s diabetic line changes and was confident he could do so but said her issue was whether Y could cope with him doing it.
Counsel for the Independent Children’s Lawyer asked the mother about the orders his instructor proposed and the mother did not express any opposition to those orders. The mother also told the Court about her four other children in her household and that the two youngest children had special needs. The mother said that she received no financial assistance from the father for the children’s school fees and that the new child support assessment meant that the father “did not have to pay anything”. The mother’s evidence was that the bulk of the financial burden of raising the children was on her and she did not ask the father to help as it was “a battle [she did not think] we need”.
Finally, the mother told the Court in response to questions from the Independent Children’s Lawyer the children “like to go” for time with the father and they would “accept” orders for them to do so, including for extended time during the holidays.
In re-examination, the mother told the Court how she had been made to feel by the father and what she was concerned about the time at the confrontation with the father of X’s first day at school.
The father’s evidence
The father gave evidence and was cross examined. The father, who lives in Suburb K (around fifty kilometres from the mother’s residence), is not employed. The father adopted, as true and correct, the affidavit he had prepared himself (Exhibit R5). Whilst it purported to respond to the mother’s affidavit it was, for all intents and purposes, a jeremiad. His Counsel then sought a certificate under s.128 of the Evidence Act 1995 (Cth), which was granted, so he could answer questions put to him in cross-examination about inter alia text messages he had sent to the mother in the days leading up to the trial.
The father, with the benefit of that certificate, told the Court that he agreed the text messages were “inappropriate” and said that he had sent them as he had been harassed by amongst others, the Department and child support authorities. The father variously said that he had sent the texts as the mother was lying (and he had been concerned about that for years). The father agreed they could be seen as threatening by the mother. The father then went on to say that if that was her “perception” but that nonetheless, he did not really believe they were.
The father was asked three times whether given that answer he did not really think they were threatening and on each occasion he attempted to deflect. The father was asked what was his intention in sending the text messages (Exhibit A3) and his answer was that he “had been harassed and he had “had enough” when he had hoped “all [the dispute with the mother would be] settled” and they “could move on”. However, the father accepted as “fair comment” that this was a far too convenient ex post facto justification.
When taken to the emails that he had sent saying “happy kids, happy Dad, happy life” (Exhibit ICL 2) the father said variously that it was not “intended to be threatening” and it was sent as [he and the children] “missed so much over the last four years” and he “just wanted to see the kids”.
When the father’s cross examination resumed on 9 February 2021, the father was taken to both the orders and recommendations made (prior to the current proceedings) for him to get assistance from psychologists because of how he had reacted to things in the past. Whilst maintaining that he believed that the mother was a liar, the father said that he agreed he needed to change the way in which he reacted and agreed (as he said he had in the past) that he would submit to such an order for him to do so, should it be made. The father agreed with the proposition put to him by Counsel for the mother that he and the mother had had difficulty communicating for “a very long time”.
The father said that the making of final orders for the children would lead to a change in his behaviour. When challenged about this (in light of the breakdown in arrangements after the final orders in July 2014) the father said he had “reacted to the “rubbish” and “having to defend” himself. When the father was taken to the history of problems between he and the mother in relation to issues such as managing Y’s diabetes over the last five years the father’s evidence was that he believed the mother was to blame for this.
The father initially denied committing family violence in the past but when taken to the definition in the Act he admitted that he had. The father had been in the witness box being cross examined for just under an hour on 9 February 2021 when he was asked whether he believed the mother had been having an affair (with her now second husband, Mr B) in 2010. The father said that he did and he “absolutely” doubted that Y was his biological daughter. The father claimed in response to the question whether he had raised this issue before that “it is just [be]come apparent now”. The father proffered “two things” as to why he said that statement should be accepted as truthful. They were that there was no diabetes in either he or the mother’s family and it only “occurred” to him when Mr B took out an intervention order against him in 2018.
When asked why, given this, he had chosen to raise the matter at that point in his evidence (having never raised this issue formally in either this Court or the Children’s Court) his response was “to cast doubt on [the mother’s] credibility to everyone”.
Notwithstanding this development during the course of his evidence the father (apparently without missing a beat or appreciating the potential emotional and other consequences for all involved as a result of this allegation (which was also uncorroborated)) maintained he still sought orders for both children to live with him as he considered Y his daughter.
The father was also taken to events back in 2012 and since and was asked whether he now acknowledged that his behaviour was either threatening or stalking. This series of questions elicited only grudging acknowledgement from the father that his behaviour could have been seen as such. Finally just before the lunch break the father was taken to events in 2015 and 2016 when he became involved with Police due to disputes with a tenant and a neighbour.
After the lunch break on 9 February 2021 the father confirmed that he wanted the children to live with him, said he believed that they were better off with him, that the mother had alienated them from him but he also acknowledged they love both parents, were not rejecting him and had been seeing him regularly (pursuant to the interim orders) and according to the report writer, were happy.
The father maintained that he believed the mother had “conspired” with the Department in 2013 and again in 2018, was manipulating Y’s diabetes, sabotaging his time with the children and systemically undermining his relationship with them. In addition to this, the father asked the Court to accept this behaviour (that he believed that the mother had engaged in including conspiring with the Department) had stopped him getting full time work as he said “I have to defend myself”.
When asked questions about the involvement of the Department he said it was “a disgrace”, the children had been “wrongfully taken off” him twice and he did not disagree with the suggestion that he had been involved in a war with the Department.
In answer to questions by Counsel for the Independent Children’s Lawyer the father agreed that the “tone” of the text messages was another example of his problem with communication. Then when taken to his proposals (as they then were before the Court) claimed for the first time that he “was prepared to relocate” so the children could stay at their schools (which he had earlier complimented the mother on choosing).
Whilst acknowledging that his case for the orders he sought had “lots of ifs” the father said that he would do whatever it takes. When taken by Counsel for the Independent Children’s Lawyer to the orders sought by his client the father agreed that he could collect the children from school and drop them off at school, the children preferred the alternate weekend time to continue and the changes the report writer suggested as a possible option (of two out of three weekends) or those that he sought were a “significant” change to what had been going on.
When asked by Counsel for the Independent Children’s Lawyer how the children would feel if they were to move to live with him (as he sought) and be separated from the mother and their half siblings (with whom they had always lived) the father said that they would be sad but he “could provide a lot more than her [the mother]”.
Finally, when asked how he would feel if there was an order for the children to spend alternate weekend time (and other orders in accordance with the Independent Children’s Lawyer’s proposal) the father said that if it was found to be appropriate he would accept the decision, he wanted the intervention order proceedings withdrawn, wanted to move on and just wanted to be happy.
The report writer’s evidence
The report writer who prepared the Report was called to give evidence and was cross examined. The report writer confirmed that she had read the material the parties had filed for the trial and was aware of their respective proposals.
The report writer conceded that notwithstanding the recommendations in the Report, any order which required the parties to communicate and cooperate would be “difficult” and that the children would pay the price of their parent’s inability to do so.
Having been appraised of the father’s proposal that the children live with him (and the claim that he made in his evidence in cross examination that he would relocate) the report writer said that the effect of any change of residence on the children is that they would find it “extremely difficult”. In relation to the father’s claims during his evidence in cross examination about his doubts about Y’s paternity the report writer said that this development concerned her.
The report writer gave evidence that she was satisfied the children’s views set out in the Report were a genuine reflection of what they were feeling and wanted.
When told of the Independent Children’s Lawyer’s proposal, the report writer’s evidence was that it “did not surprise” her and agreed that the alternate weekend arrangement enabled the children to maintain all of their familial and peer relationships.
In relation to the recommendation in the Report for a possible two out of three weekends arrangement with the father, the report writer finally acknowledged she did not “know a great deal about what happened” between when she first interviewed the family in 2013 and 2018 and whilst acknowledging the situation was “complex” said that option had been proffered “to make up for what [was] missed” by the children.
When questioned by Counsel for the mother the report writer, whilst denying that she had in effect become an advocate for the father, had no adequate answer to the allegation put to her that she had not been privy to all of the information before the Department and the Children’s Court but had made a recommendation nonetheless for two out of three weekends because she had been concerned about what they had missed out on and due to the Department’s involvement (which she disagreed with).
Given the evidence of the report writer before the Court it is timely to recall that it was noted in Albert & Plowman [2020] FamCAFC 23:
…
19.Single experts, either by court appointment or consensual engagement by the parties, are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the Court which is relevant to the determination of the issues in dispute. But they are just witnesses. Their expert opinion evidence is not necessarily decisive of the dispute. Judicial power to decide the legal dispute rests in the hands of the trial judge, not the expert witness.
20.Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict.
21.As was observed in this jurisdiction long ago (see Hall and Hall (1979) FLC 90-713 at 78,819):
… There is no magic in a [single expert report]. A Judge is not bound to accept it and there should never be any suggestion that the [expert] is usurping the role of the court or that the Judge is abdicating his responsibilities…
…
While the [single expert]’s views will normally have weight with the court because of his expertise and experience, the [expert] does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the [single expert]…
(References omitted)
22.Those observations have been successively endorsed by the Full Court (see Carpenter & Lunn (2008) FLC 93-377 at [226]-[227]; Friscioni & Friscioni [2010] FamCAFC 108 at [96]-[97]; Bostoi & Bostoi [2011] FamCAFC 132 at [40]-[44]; Whipp & Richards (2012) 257 FLR 395 at [101]), but more importantly by the High Court of Australia, which confirmed a court hearing a dispute under Part VII of the Act is not bound to accept or reject the whole or any part of the evidence given by an expert witness (U v U (2002) 211 CLR 238 at 261).
The Court bears in mind what the authorities have had to say about the weight the Court can and should place on any recommendations such as those made by the report writer in this case. Each of the parties in this matter had an opportunity to cross-examine the report writer. It is for the Court to decide what is in the children’s best interests. In doing so, it is necessary to bear in mind the evidence of the report writer which includes giving appropriate weight to her evidence and her recommendations (in her evidence before the Court) which departed from those in the Report.
The Report repeatedly referred to the need for the Court in test the allegations in the context of its decision about the various proposals for the children. Therefore, and despite the florid nature of the claims made by Counsel for the mother in submissions about the report writer becoming an advocate for the father as the evidence in cross examination transpired it became clear that the report writer had proceeded to conclusions either without setting out the basis upon which or why they were made and (on her own admission) without all the information that the Department had at the time of their intervention/s.
The report writer said in her evidence in cross examination that she was “not invested in what happens”, had made the recommendation about two out of three weekends in light of the Department’s intervention and then agreed that alternative weekends were “most workable for the family”.
I accept the submission of the Independent Children’s Lawyer that the report writer “conceded her view, assessment and recommendations may have been clouded by her point view of the [Department’s] involvement and the resultant impact upon the time spent by the children with their father”. I also accept the Independent Children’s Lawyer’s submission that the report writers’ evidence ultimately was that “her view and recommendation was not fixed with respect to increased frequency” (i.e. two out of three weekends) and “a continuation of the present frequency of time (alternate weekends) may be appropriate”.
FINAL SUBMISSIONS
Pursuant to the orders made on 9 February 2021, each of the parties were given an opportunity to provide final written submissions in light of the evidence, as it had transpired during the trial.
The Independent Children’s Lawyer’s final submissions
In compliance with the orders made on 9 February 2021, the Independent Children’s Lawyer filed written submissions which were as follows:
…
E. Summary of the Evidence
Ms Abercrombie
8.Ms Abercrombie provided evidence that the children love their father, and she believes this love is reciprocated by Mr Damon who loves them.
9.Ms Abercrombie, however, added that she continues to feel at times overwhelmed by the communication and its intensity from Mr Damon. Ms Abercrombie detailed that she continues to receive unnecessary communication from Mr Damon, referring to a bundle of sms text messages (exhibit “A3”) received in the week prior to the hearing.
10.In relation to Y’s needs, and in particular as to her diabetes treatment and line change, Ms Abercrombie detailed that she accepts that Mr Damon has now undertaken the necessary training to enable him to assist Y to effect such line changes. The evidence provided indicated that a line change is required every two days, meaning that on any alternate weekend period with her father, Mr Damon would need to attend to at least one line change for Y.
11.A recording (exhibit R2), said to have been taken on the weekend of 29 January 2021, taken by the Mother, was intended to suggest that Mr Damon had used incorrect tape to fasten the child’s cannula. In evidence, however, Ms Abercrombie conceded that she had not followed the recommended steps to removing the adhesive (bathing and/or using oil) and had instead allowed the child to shower before removing the tape. It is submitted that the recording did not cast Ms Abercrombie’s approach in good light.
12.Ms Abercrombie’s evidence as to her ability to encourage or facilitate the children’s relationship with their father in the 2018 – 2020 period appeared unconvincing.
13.Ms Abercrombie detailed that each of the children are progressing well at school, adding that she was committed to a catholic education, even though some of the Mother’s knowledge concerning the catholic faith appeared tentative.
14.Ms Abercrombie confirmed that there is little (if any) effective communication between the parents and this has been the case for some time.
Mr Damon
15.Dr R, in his assessment of Mr Damon assessed his difficult presentation as an aspect of his Obsessive-Compulsive Personality Disorder which results in him being conscientious, scrupulous and inflexible about matters of morality, ethics or values manifesting rigidity and stubbornness and feeling a need for control over matters over which one cannot necessarily succeed. It is submitted that Mr Damon’s presentation in cross-examination was consistent with Dr R’s assessment.
16.Soon into Mr Damon’s cross-examination he detailed that I confirm that the communication between us is very very poor. Shortly thereafter, in reference to the parents’ historical capacity to communicate, in 2015, he added that we were not communicating … and we needed to communicate. Further, Mr Damon in response to a recording of 2013 (exhibit “R3”) rationalised his following Ms Abercrombie and approaching her car at traffic lights at that time as we needed to talk.
17.In Mr Damon’s cross examination, he detailed his view that Ms Abercrombie had been responsible for kidnapping the children; denigrating him; undermining the time spent between the children and the Father; and a cause of his inability to secure full time work. Mr Damon further shared his view that Ms Abercrombie is mentally unwell, and in response to a question by counsel for Ms Abercrombie, queried if Y is his biological child (although Mr Damon also added that he regards Y as his child, loves her, and that I am on her birth certificate). Mr Damon further shared a view that Ms Abercrombie has been (or has sought to) alienate the children against him.
18.In response to a question by the Court, Mr Damon acknowledged that when he is under pressure he makes poor choices, and it is submitted that Mr Damon presented as very frustrated by the Court process and the DHHS involvement with the family.
Ms U
19Ms U provided a Family Report dated 11 December 2020. In the Report, Ms U reflects the children’s preference to remain living in their mother’s care and spending time with their father on a similar frequency to the current arrangements and it is submitted that this is consistent with the views expressed to the ICL.
20.Ms U was clear in her evidence that a change of residence for the children would not be in their best interests, referring to issues of guilt or loss for the children. Moreover, Ms U noted that the current time spent arrangements appear to be working well and that the children enjoy a positive relationship with their father.
21.Ms U was asked to clarify the “compensatory notion” or extra time to make up time the children missed out on over two years as expressed in the Family Report. The ICL notes that Ms U conceded that her view and assessment may have been clouded by her poor view of the DHHS involvement with the family and the resultant impact upon the time spent by the children with their father. Ms U added that her view and recommendation was not fixed with respect to the increased frequency as set out at para. 130 of her Report. In fact, Ms U conceded that a continuation of the present frequency of time (alternate weekends) may be appropriate.
General
22In light of the clear inability for the parents to communicate; the rigid and inflexible poor view held by Mr Damon of Ms Abercrombie, and the children’s clear preference for a retention of an arrangement consistent with the present time, the ICL cautions against extending the children’s frequency of time and submits that Equal Shared Parental Responsibility would be both impracticable and counter productive.
The mother’s final submissions
On 3 March 2021, the mother filed closing submissions which were as follows:
…
Witnesses and Evidence
4.The court heard from the Mother and the Father and the Family Consultant, all of whom were cross examined by counsel.
5.The court also had before it the Psychiatric Report of Dr R and the various other documents tendered during the course of the proceedings.
6.It is submitted that the Mothers evidence was more balanced in her view of the Father and generally more child focused than the Father’s. She was able to concede that the children loved their Father and that he loved them and she also saw the benefit to them in having a relationship with him. It is submitted that the Mother gave her evidence in honest and open and understated manner.
7.It is submitted that the understated way in which the Mother gave evidence about the history of her relationship with the Father and her difficulties in dealing with him historically has been completely misunderstood by the Family Consultant who appears to have interpreted her lack of expansion on issues such as family violence as evidence that she has fabricated them.
8.It is clear from the contents and general tone of her report that whilst she speaks of the need for the court to test the allegations, the Family Consultant has herself formed a view on this issue. This concluded view has caused the Family Consultant to lose sight of her role, to lose her objectivity and to become an advocate for the Father.
9.The conclusions drawn by the Family Consultant about the involvement of the DHHS in its decision to cease the Father’s time with the children was one based on the FC’s acceptance the Father’s narrative, namely, that the DHHS involvement was based on a litany of lies and unsubstantiated allegations by the Mother against the Father where the motive was to damage, if not destroy the Father’s relationship with the children and completely eliminate him from their lives.
10.The report reads as an appeal for justice for the Father who the Family Consultant sees as having been a victim of the Mother’s unfounded allegations, and the DHHS’ incompetence. Seen in this light the recommendation in paragraph 125 for two out of three weekends as “make up time’ is explicable. It is compensation for the Father for time he missed as a result of the Mother’s obstruction of his relationship for two years.
11.The Family Consultant makes this recommendation despite the express wishes of both children - including that of 13-year-old X - who tell her that they “would be fine with the current arrangements continuing’. The rationale for the recommendation is not in accordance with the legislative considerations under which this court operates in making parenting orders.
12.Quite apart from this, the conclusion ignores the evidence that the children love their Father and have a good relationship with the Father, which she herself noted to be sound and close. Given this and the ages of the children it is difficult to understand why make up time would be needed. It is clearly not to strengthen a fragile relationship.
13.In regard to the issue of parental responsibility, the Family Consultant recommends that it continues to be shared (128) but does not explain how this sits with the deep seated animosity and high level conflict she herself perceives to be a hallmark of the parental relationship or with the complete lack of parental alliance that exists in this case, although she then goes on to acknowledge that an equal shared care living arrangement would not be in the children’s best interests for these very reasons (121).
14.It is submitted that the court should have little confidence in the Family Consultant’s report and should reject her recommendations for shared parental responsibility and additional time for the children with their Father.
15.To state the obvious, there is no magic in a Family Report, it is but one item of evidence before the Court and the Court can give it such weigh as it sees fit. It is submitted that the oral evidence of the Family Consultant did nothing to inspire great confidence that soundness of her reasoning or analysis in this case.
16.In this case the court has had the benefit of seeing and hearing both the Mother and Father over two days and can judge for itself the veracity of the parties on all issues including family violence.
17.The Mother supports the submission made by the ICL at paragraphs 15 of his Final Submissions about the quality of the Father’s evidence. The Father presented over several hours with an intense self-focus, he was stubborn, rigid, controlling and inflexible and argumentative. His inability to move on from, or let go an issue was striking. The intensity of his focus to a position or issue was striking and it is submitted demonstrated to all how difficult he would be to negotiate with. It is submitted that having observed the Father give evidence over some time, the Mother’s evidence in cross examination that she felt overwhelmed by communication with the Father because of its ‘intensity’, the Court should easily accept her assertion of profound difficulty dealing with the Father. The Mother’s evidence of the series of events that followed on X’s first day of school where the father followed the Mother’s car, banged on her car windows and finally taped a conversation with her when she pulled over to speak to him - so he would not follow her home - is controlling behaviour in the extreme.
18.The Father’s evidence revealed a profound lack of insight or ability to self-reflect, and indeed demonstrated that he is unable to change his behaviour or his responses.
19.It is submitted that he was also manipulative or strategic in the way he gave some answers, seemingly telling the court what he thought were the ‘right' answers and what the court might want to hear, but when pressed, demonstrating no real understanding or insight of why the behaviour or response was concerning and often returning to a position of justification and minimisation.
20.In particular the Court is asked to consider his evidence about whether the texts he sent the Mother last week were inappropriate and constituted family violence, likewise his concessions about attending the Mother’s home, contacting the Mother’s husband’s ex-wife and friends and workplace. His evidence revealed that he knew that the Court might consider that behaviour to be problematic but he really did not accept that it was, nor that the Mother or others might be frightened or feel harassed and threatened.
21.The evidence of leaving the flowers and other ‘marriage’ memorabilia should concern the court. The Father completely missed the point about why that episode might be disturbing to the Mother. He said the Mother was not home as if that mattered at all. In his affidavit he describes this incident as some sort of benign romantic gesture and as an intended ‘surprise’. The Father did of course not just leave love notes and flowers, the torn divorce documents and broken photos of the ‘dream house’ send an entirely different, quite malign message, to the Mother, they speak of control and an unwillingness to respect the Mother’s decisions to leave the relationship. It is submitted that this behaviour constitutes family violence.
22.The Father’s evidence about his plans for a week about arrangement were seemingly made ‘on the hop' and without real thought. There is no evidence that the Father’s plan for future work and for changing his residence to minimise disruption to the children have been planned in any real way, or will come to fruition if the history is any guide. This evidence should be rejected.
23.The Father seeks a week about arrangement when the evidence shows that he has never, since separation, financially supported his children in any meaningful way, and where he still blames the Mother and the court system for his failure to gain or maintain employment and therefore financially support his children.
24.This is a man who has not worked for at least the last four years and yet has on his own affidavit evidence only managed to collect the children from school on Fridays on ‘four occasions each calendar year’ when doing so would have given him more time with the children and an opportunity to be a parental presence at their school. This unwillingness or inability to be part of the children’s school lives and maximise his time with the children again shows a lack of insight, judgment and calls into question the real focus/motivations behind the Father’s application for residence of the children.
25.The Father seeks week about and equal shared parental responsibility in circumstances where, he agrees the communication between he and the Mother are very poor, where his attitude to the Mother as demonstrated during his cross examination was unrelentingly negative and critical and blaming. Whilst it is not unusual for parents to express such attitude to another parent in this court, the extreme, hyperbolic quality of the language used by the Father about the Mother should concern the cost (sic) and must militate against any prospect of these parties having a respectful and effective coparenting relationship.
26.The Mother otherwise adopts the written submission of the ICL at paragraphs 15 to 18 of that document noting in particular the impact of such attitude towards the Mother when the court is considering an equal shared care arrangement and the parents’ ability to genuinely consult with each other to reach decisions together as the legislation expects that parents sharing parental responsibility will do.
Conclusion
1.Allocation of parental responsibility
27.It is submitted on the basis of the matters referred to above that the evidence overwhelmingly supports a conclusion that the presumption be rebutted on the basis of family violence s61DA(2)(b).
28.Furthermore the evidence overwhelmingly supports the conclusion that the presumption would not apply on the basis that it is not in the best interests of the children s61DA(4).
29.There is really no possibility at all that these parents can sit together and reach any decision together.
30.The Father gave evidence that the Mother’s choice of school for the children has been a good one. The evidence is that the Mother and her husband have for the last several years made decisions for the children, including decisions around Y’s medical issues despite some obstruction from the Father (which led in part to the involvement of DHHS) and in any event without much input from him. The evidence suggests that the Mother’s attention to Y’s medical care is competent and promotes the child’s welfare.
2.Live with arrangements
31.There is no evidence before the court which would warrant the children being removed from the long-established primary care of their Mother and the household, they share with their four other siblings.
32.The basis on which the Court might consider a change of residence as suggested by the Family Consultant (120) are not made out in this case. This Court cannot make a finding that the Mother has not facilitated a relationship between the children and their Father. The fact that the children see their Father regularly in accordance with current orders and enjoy a good relationship with him is evidence to the contrary.
33.A week about arrangement is not in the children’s best interests (for all the reasons indicated in this document) nor is it reasonably practicable given the distance between the parents’ homes. Furthermore, the children express a view against such an arrangement.
3.Time spent orders
34.The current order appear to be working well and the children enjoy their time with their Father. They do not seek more time. There is no evidence before the court as to how two out of three weekends with the Father is in the best interests of the children. The only reason offered by the Family Consultant was the ‘make up’ notion, which, it has been submitted, is a misguided idea.
35.These children are heading into teenage years, where their friends and community ties will assume greater importance developmentally. It is submitted that removing them from their community for the majority of their weekends is too disruptive and may possibility lead to some resentment and resistance if it interferes - as it will - with their burgeoning social and sporting lives outside of their immediate family.
36.The children have siblings in their Mother’s household - a factor which was seemingly overlooked by the Family Consultant. As school aged children, the weekends are the times when families can spend quality time together away from the weekday pressures of work and school. The best balance for these children is for the weekend time to be shared equally. As will be the holiday time.
37.The Mother’s orders provide for week about time during the long holidays as the children have never spent extended time with the Father, and he has presently limited, albeit improving familiarity with Y’s medical needs over extended periods. His evidence was that he has completed three-line changes only. The Mother continues to have some reservations about the Father’s ability to meet these needs over an extended period during holidays and that that obligation to look after her own health will fall on Y’s shoulders.
The father’s final submissions
I find that it is in the children’s best interests to ensure that parenting orders made in these proceedings take into account the need for the children to be protected from psychological harm arising from the ongoing conflict between their parents which could be described both as abusive and/or neglectful.
I am satisfied that the children can be protected by injunctive orders that go to regulating the behaviour of the parties each towards the other and ensuring that the children are not drawn into their conflict.
The evidence as a whole supports a finding that there has been family violence, as that term is defined in the Act, perpetrated by the father. The father’s own evidence bolsters this view.
I am satisfied that it is necessary to make orders which ensure that the children are protected from physical or psychological harm as a result of exposure to family violence by the father.
I find that whilst the father would benefit from further attendance upon a counsellor with respect to anger management after the experience of the trial (and as the Independent Children’s Lawyer did not seek such an order) it is hoped that he would voluntarily seek such assistance.
ADDITIONAL CONSIDERATIONS
Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views;
The Court may inform itself of the views expressed by children by having regard to anything contained in the Report given to the Court by a family consultant or other expert (such as the report writer) or through the Independent Children’s Lawyer and I do so.
The Full Court in R&R: Children’s Wishes (2000) FLC 93-000 said that the wishes of the children are important and proper weight should be attached to any wishes expressed by the children, depending on their basis and the maturity of the children. Importantly, it was made clear the overall welfare of the children is the determining factor.
I am satisfied that the children’s views are clear and that, in the circumstances of this case, they are views upon which the Court should place weight.
I am not satisfied on the evidence that the children’s preference is for any significant increase in time with the father and I note the words of the children (given voice to by the father in his evidence before the Court) that they enjoy their “break with him”.
The nature of the relationship of the children with each of the children’s parents; and other persons (including any grandparent or other relative of the children);
I find that the children have a loving relationship with each of their parents.
I find that the children have always lived with the mother and she is the children’s primary carer. She has been so at least since the parties’ separation, a period which encompasses either the majority (or the whole) of the children’s lives. I find also that the children are confident in having the majority of their day to day needs met in both of their parents’ households and they enjoy the time they have with the father which he gave evidence they describe as their “break”.
Extent to which the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the children, to spend time with the children and to communicate with the children;
Final parenting orders have been in place with respect to the children’s day-to-day care since the consent orders made in July 2014. Since then the children have been subject to orders made in the Victorian Children’s Court and since these proceedings commenced interim orders.
The children are living with the mother and have now been spending substantial and significant time with the father since interim orders were made in these proceedings (and after their time under the previous final orders had been interrupted by the involvement of the Department).
The mother’s evidence was that she has had to make long term decisions in relation to matters such as schooling for the children and the evidence on other long term issues (such as Y’s diabetes treatment) shows both parties in a poor light and underscores the profound inability of the parties to communicate and be able to co-operate about such matters.
A good illustration of the father’s manic approach to some of the claims he made in these proceedings was that in one paragraph of the final submissions he was critical of the mother’s choice of school but two paragraphs later noted he himself supported the mother’s choice of school.
Extent to which each of the children’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the children;
The mother is primarily responsible for maintaining and supporting the children. The father does not pay child support.
The mother’s evidence relevant to this issue has been referred to earlier and the only conclusion that can be arrived at is that the mother is shouldering almost the entire responsibility for maintaining the children.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents; or any other children or other person (including any grandparent or other relative of the children) with whom he or he has been living;
This is an important factor in this case (given the orders sought by the mother and the father). The evidence is that the children would be adversely effected by a change in circumstances were the Court to make orders sought by the father. The severity of this effect would be somewhat lessened were the option of two out of three weekends with the father considered but ultimately the evidence doesn’t support it as being more likely to be in the children’s best interests than the other option before the Court which was a continuation of the alternate weekend arrangements.
The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relation and direct contact with both parents on a regular basis;
Both parents live a reasonable distance from each other and I am satisfied that this is a relevant factor in this case. However, whilst (albeit historically) changeovers have proved to be problematic given the evidence of the father before the Court that he can collect from and drop off to school at least one of those matters will no longer be as problematic.
The father’s claims in his evidence before the Court about his preparedness to move closer to the mother (presumably in support of his argument for equal time to work or so the children could attend their chosen schools) was troubling. Not only was this so because it only arose in cross examination but it did not appear to have been thought through as that evidence conflicted with evidence the father had given earlier in the day about potentially setting up a business at his home in Suburb K.
There would appear to be no practical difficulty connected with the children living with the mother and spending substantial and significant time with the father. The same cannot be said of either an equal time or even two out of three weekend arrangement given the parties on their own admission lack the requisite skills and capacity to communicate which would be required for the children to enjoy such an arrangement without significant disruption and the ever present possibility of conflict between the parents if history is any guide to the future.
The capacity of each of the children’s parents, any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs and the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
I am satisfied, having regard to the evidence that the mother has, and will continue to, provide appropriately for the children’s physical, emotional and intellectual needs.
All of the evidence supports a finding that the mother has demonstrated a strong commitment to her responsibilities to parent the children. She has acted to protect the children from family violence. I am satisfied that the mother will continue to act protectively and in the children’s best interests.
The father’s final submissions made claims that the Court should find the mother has not facilitated a relationship with the father. As the reasons set out earlier make clear at times such a finding is made. However, contrary to the claims also made in these submissions I am unable to find the mother “sabotaged” orders as the father alleged.
The principal concerns with respect to the father include the allegations of and the existence of family violence. As indicated previously, I am satisfied that the father has perpetrated family violence against the mother.
Further, as noted previously, I am satisfied that the father has demonstrated little insight or understanding as to the impact of his behaviour. The father has demonstrated very little capacity to reflect on his own role within the conflict with the mother or others, nor has he demonstrated any capability to reflect upon the impact of those altercations on the children.
Throughout his evidence, the father sought to impress upon the Court his love and devotion for the children. That is but one aspect of his responsibilities as a parent.
I find that both parents have at times struggled to put the children’s emotional needs ahead of their own and have allowed themselves to be overwhelmed by their inter-personal conflict.
However, the evidence is that the children have their emotional intellectual and financial needs met in the mother’s household and that they enjoy their “break” time with the father who is able to meet their needs when they spend that time with him.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other relevant characteristic of the children;
The evidence already set out above (to the extent it is relevant for this consideration) has been taken into account and need not be repeated.
If the children are Aboriginal children or Torres Strait Islander children the children’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 the likely impact any proposed parenting order under this Part will have on that right;
This consideration is not relevant to these proceedings.
Attitude to the children and the responsibilities of parenthood, demonstrated by each parent;
The unfortunate conclusion arrived at in light of the evidence is that it is the father’s unbending attitude and the pursuit of his quest to correct the wrongs (that he perceived to have been done to him) has meant that the father has lost sight of his real parental responsibilities.
Both parents love the children. Whilst they would each say they have used their best endeavours to attend to the responsibilities of parenthood to the best of their respective abilities I am not satisfied that it is the case.
They have been hampered in doing so because of the deep level of distrust they each hold towards the other and that they found themselves caught up in the child protection system (and each on own their own evidence (though for different reasons)) unable to make decisions for themselves and the children. In addition, the father still feels animosity towards the mother and the mother exhibits a heightened state of anxiety whenever either she interacts with the father.
The parents’ mutual antipathy and lack of trust for each other has significantly impacted on the children’s emotional well-being such that they were at times “stuck in the middle” of the parents dysfunctional relationship.
The communication between the parties has been difficult and on the evidence there is little prospect of that changing. I accept the evidence of the mother as to the father’s abrupt and at times angry presentation. The veracity of the father’s claims he just wanted to move on was difficult to reconcile with the majority of his evidence which centred on what he saw as the wrongs (mainly done to him) in the past. The tragedy is that these children need their parents to focus on the future and to work together (for the children’s sake) to navigate the inevitable challenges these children will face as they navigate growing up in the twenty first century. After hearing the evidence I have real and profound reservations about the ability of the parents to do so.
Often it is said that past behaviour is a good predictor of future behaviour. In my view the past behaviour of both parents, which at times can be criticised for their lack of respect and trust for the other parent is not a good predictor of their capability for future improved behaviour by them (for the children’s sake) in this case.
Any family violence involving the children or a member of the children’s family.
I have referred to this issue earlier when considering the requirements of s.60CC(2)(b).
There are still interim family violence orders in place and I refer to my earlier finding that the children do need to be protected from conflict between their parents but that such a need can be provided by ensuring as far as practicable the parents do not come into contact and by the making of injunctive orders such as those sought by the Independent Children’s Lawyer.
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;
This consideration has already been discussed. For completeness I note the intervention orders proceedings between the parties remain on foot and were due back before the Victorian State Courts in April 2021.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings.
This dispute over parenting orders between the parties have been on foot since 2019. Having regard to the history before and since then, I am satisfied that the time has come to bring an end to the litigation. Both parents have, during the course of these proceedings, been able to air their concerns with respect to each other and for the children’s sake, final orders should be made to minimise further conflict.
Any other fact or circumstance that the court thinks is relevant.
As a result of the areas of disagreement between the parties in the past, it is important for orders to be made as clear as possible in order to eliminate potential grey areas which would only be likely to foment disagreement in the future.
PARENTAL RESPONSIBILITY
The first matter to be determined is the question of allocation of parental responsibility. The mother and the Independent Children’s Lawyer both seek orders that the mother have sole parental responsibility for the children. The father seeks an order that he and the mother have equal shared parental responsibility for the children.
As the Full Court made clear in Dundas & Blake [2013] FamCAFC 133; (2013) FLC 90-552 at [61] the application of the presumption is mandatory, unless the evidence satisfies the Court that it is not in the best interests of the child, and there must be explicit and cogent reasons why the presumption should be rebutted. More recently, Kent J, sitting as the Full Court, in Vallans & Vallans [2019] FamCAFC 260 expressed the view as [38]:
There cannot be any doubt that the legislative intent is that the statutory presumption is of central importance. The corollary of that is there must be convincing proof as to the children’s best interests for s.61DA(4) to be activated to rebut the presumption.
The Independent Children’s Lawyer’s position in final submission was that there was a “clear inability for the parents to communicate” and given the “rigid and inflexible view” held “by the father of the mother equal shared parenting responsibility would be both impracticable and counter-productive”. I agree.
In this case, the evidence is that there is no civil relationship between the parties, no effective communication, no good will, no evidence that their parenting styles are similar, and no evidence they have a commitment to such an arrangement. The evidence is their relationship is characterised by mistrust, suspicion and an inability to communicate, let alone negotiate.
Moreover, all of the evidence supports a finding that there has been a high level of conflict between the parties for many years. There have been a nimiety of applications for family violence intervention orders made by, or on behalf, of the mother, and the father. The evidence supports a finding that the children have been deeply affected by the conflict between their parents.
In circumstance where the children will live with one parent and spend either equal time or substantial and significant time with the other ideally having both parents providing their views about major long term issues would be appropriate. However, there needs to be a basis upon which a decision can be made without coming back to Court. On the evidence it is not possible to be satisfied that it is likely that the communication between the parents would improve. They have low levels of mutual respect and trust which was clearly evident at trial.
It would not be in the best interests of either child for there to be continuing conflict over a long term issue and no way of resolving it. Putting to one side the finding open on the evidence under s.61DA(2) and having regard to the evidence before the Court I am satisfied that it would be contrary to the children’s best interests were there to be an order for equal shared parental responsibility (pursuant to s.61DA(4) of the Act).[4] It is for the reasons set out above not otherwise in the children’s best interests to make an order for equal shared parental responsibility.
[4] see Vallans & Vallans [2019] FamCAFC 260
Accordingly, in the circumstances I am satisfied that the mother should have sole parental responsibility in relation to the children. I am satisfied that the children’s best interests are served by the mother having sole parental responsibility to enable her to make all necessary decisions regarding the children’s long-term care, welfare and development after providing notice to the father of those and observing the process contended for by the Independent Children’s Lawyer.
LIVE WITH AND TIME SPENT ARRANGMENTS
Given the finding made in relation to parental responsibility, the requirement to consider equal time or to substantial and significant time, pursuant to the provisions of s.65DAA, is not triggered[5] and the Court should then make parenting orders consistent with the findings made in relation to section 60CC, having regard to s.60CA and s.60B.
[5] see Heath & HemmingNo. 2 (2011) FamCA 749.
These parents have been involved in conflict and litigation since shortly after their separation. It has been ongoing in one court or another, whether that be in the Federal Circuit Court, the Victorian Magistrates Court or the Children’s Court. It has been ongoing and relentless and the children have been traumatised. It must stop.
Over time the mother has not always supported the children having the opportunity to have a relationship with the father by spending time with him regularly (and in accordance with the previous final orders). However, overall the mother’s evidence left the sense that she was firmly focused on the children’s future and saw them having that chance into the future as important. In contrast, the father’s evidence left the clear impression that he was fixated on the past and this belied the veracity of his claims that he wanted to move on
For any shared parenting arrangements to work it is important for the parents to communicate regularly and in a timely manner about issues pertaining to the children and that they do so in a civil and respectful manner without exposing the children to conflict or involving them in adult issues: see also the decision of Tree J in Johns & Jasapas [2016] FamCA 471 and what His Honour said at [134-136]. Putting to one side the distance between each of the parties’ home there is no basis on the material before the Court to find that will happen.
The father’s submissions maintained a claim for orders for a change of residence. This was despite the report writer, for the reasons referred to earlier, rejecting that as an option. The rationale for this (and the claims made in support of that) in final submission were also not put to the report writer in cross examination.
The father’s primary proposal was rejected by the report writer and the evidence regarding the other recommendation she made speaks for itself. The difficulties confronting the Court being convinced the father’s primary (and alternate) positions are manifold and have been referred to earlier. In summary they ask the Court to speculate about possible scenarios in the face of evidence that would otherwise suggest they would not work.
The father may see the result as a reward to the mother for her behaviour[6], but a continuation of the existing spend time arrangement (of alternate weekends) would provide the children with the opportunity to have the best chance to have a meaningful relationship with the father given his poor attitude to the mother and inability to communicate in a child focused manner without the risk of conflict and the impact that would have (again) on the children.
[6] However see Wang & Dennison (No.2) [2009] FamCA 1251 at [77]
Having regard to the evidence, coupled with my findings as to the need to protect the children from physical and psychological harm, I am satisfied that the children’s best interests are served by an order that they continue to live with the mother and spend time with the father in accordance with the orders sought by the Independent Children’s Lawyer (which amount to substantial and significant time). The father told the Court that he would agree with whatever order was ultimately made.
As set out above, the Independent Children’s Lawyer adopted some of the minor amendments to the orders he contended for (as suggested by the mother in her final submissions) which I am satisfied will assist in removing or eliminating potential grey areas and minimise any likelihood of future disagreements. Accordingly, and for the reasons set out above, the Independent Children’s Lawyer’s proposals (supported by the mother) are to be preferred and more likely in to be in the children’s best interests.
CONCLUSION
Whilst I do not doubt things would be challenging in the mother’s household (particularly having regard to the demands imposed by parenting the other four children) there is no evidence that the children are not well cared for. They are progressing well at school and enjoy their time with the father.
Without wishing to inflame what appeared to be the father’s unbridled sense of grievance, and whilst I was left in no doubt that the Department’s intervention caused him enormous distress, this was not and could never have been a review of or appeal from decisions made by the Department or the orders made by Victorian State Courts. This is the case as there are other avenues of appeal and there were no witnesses called from the Department (who had declined the request that they intervene in the proceedings) and the difficulties with second guessing decisions made by the Department without all the information are readily apparent from the evidence given by the report writer.
It behoves the father to reflect on the observation that children learn their own future behaviour and how they deal with difficult situations from what they observe of their parents. In this regard a parent who uses violence against another person as a means of resolving a dispute, who is denigrating of another person especially the other parent or who engages in family violence, is not a suitable role model for children.[7] Finally, the father may rue having made the allegations about Y’s paternity that he did during the course of these proceedings. To that end I agree with the rhetorical point made in the final paragraph of submissions filed on his behalf.
[7] see In the Marriage of JD & BG (1994) 18 FLR 255 and In the Marriage of Patsalou (1994) 18 FLR 426.
I will make the orders as set out at the beginning of these reasons for decision as I am satisfied they are in the children’s best interests.
I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 8 April 2021
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