Adamson and Fuller

[2017] FamCA 981

FAMILY COURT OF AUSTRALIA

ADAMSON & FULLER [2017] FamCA 981

FAMILY LAW – CHILDREN – PARENTING – where the parties disagree how their youngest child is coping with their conflictual relationship – where orders are necessary even though parties agree to attend therapy because of the nature of their relationship.

Family Law Act 1975 (Cth)

In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144; [2011] UKSC 27

APPLICANT: Ms Adamson

RESPONDENT: Mr Fuller

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5740 of 2016

DATE DELIVERED: 30 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20, 22, 23, 24 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Atkinson

SOLICITOR FOR THE APPLICANT: Kennedy Partners

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates Pty Ltd

FURTHER AMENDED PURSUANT TO RULE 17.02 OF THE FAMILY LAW RULES 2004

Orders

1. That all extant parenting orders are discharged.

2. The children E born … 2003 and F born … 2005 live with the mother.

3. The father spend time with F as follows:

   (a) each alternate weekend commencing Friday 8 December 2017 from the conclusion of school on the Friday until 2.00pm on the following Sunday; and

   (b)during the school holidays (both term and summer) for the first four days of each holiday period and during the summer holidays, for such other periods as the parents agree provided that the time coincides with that when E is in the father’s care.

4. The father spend time with E as follows:

   (a)commencing on 30 November 2017, during each alternate week, from the conclusion of school on the Thursday until the commencement of school on the Friday morning;

   (b)commencing on 7 December 2017, each alternate weekend from the conclusion of school on the Thursday until the commencement of school on the following Monday; and

   (c)for one half of all school holiday periods on dates to be agreed and failing agreement, the first half in all odd-numbered years and the second half in all even-numbered years.

5. All time between the father and both children during school terms is suspended during school holiday periods and shall resume upon the commencement of the new term as if it had not been suspended.

BY CONSENT IT IS ORDERED

1. That the mother and father have equal shared parental responsibility for the children E ("E") born … 2003 and F ("F") born … 2005 (“the children”).

2. The children live with the father on special occasions as follows:

   7.1On the Father’s Day weekend, from 5.00pm on Saturday until the commencement of school on Monday;

   7.2      On E’s birthday (…):

   7.2.1In 2017 and each alternate year thereafter, from the conclusion of school (or 3.30pm if a non-school day) on 17 November until the commencement of school (or 12 noon if a non-school day) on 18 November.

   7.2.2In 2018 and each alternate year thereafter, from the conclusion of school (or 12 noon if a non-school day) on 18 November until the commencement of school (or 12 noon if a non-school day) on 19 November.

   7.3      On F’s birthday (…)

   7.3.1In 2017 and each alternate year thereafter, from 3.30pm on … until 12 noon on …

   7.3.2In 2018 and each alternate year thereafter, from 12 noon on … until 12 noon on ….

   7.4On the father’s birthday (…) from the conclusion of school (or 12 noon if a non-school day) on … until the commencement of school (or 12 noon if a non-school day) on ...

   7.5      At Easter:

   7.5.1In 2018 and each alternate year thereafter, from 5.00pm on Easter Saturday until the commencement of school (or 12 noon if a non-school day) on Easter Tuesday. 

   7.5.2In 2019 and each alternate year thereafter, from the conclusion of school (or 3.30pm if a non-school day) on Easter Thursday until 5.00pm on Easter Saturday.

   7.6      At Christmas:

   7.6.1In 2017 and each alternate year thereafter, from 12 noon on 25 December until 5.00pm on 26 December.

   7.6.2In 2018 and each alternate year thereafter, from 5.00pm on 24 December until 12 noon on 25 December.

3. The children live with the mother on special occasions as follows:

   8.1On the Mother’s Day weekend, from 5.00pm on Saturday until the commencement of school on Monday;

   8.2      On E’s birthday (…):

   8.2.1In 2017 and each alternate year thereafter, from the conclusion of school (or 12 noon if a non-school day) on … until the commencement of school (or 12 noon if a non-school day) on ….

   8.2.2In 2018 and each alternate year thereafter, from the conclusion of school (or 3.30pm if a non-school day) on … until the commencement of school (or 12 noon if a non-school day) on ….

   8.3      On F’s birthday (…)

   8.3.1In 2017 and each alternate year thereafter, from 12 noon on … until 12 noon on 1 January.

   8.3.2In 2018 and each alternate year thereafter, from 3.30pm on … until 12 noon on …

   8.4On the mother’s birthday (…) from the conclusion of school (or 12 noon if a non-school day) on … until the commencement of school (or 12 noon if a non-school day) on ...

   8.5      At Easter:

   8.5.1In 2018 and each alternate year thereafter, from the conclusion of school (or 3.30pm if a non-school day) on Easter Thursday until 5.00pm on Easter Saturday.

   8.5.2In 2019 and each alternate year thereafter, from 5.00pm on Easter Saturday until the commencement of school (or 12 noon if a non-school day) on Easter Tuesday.

   8.6      At Christmas:

   8.6.1In 2017 and each alternate year thereafter, from 5.00pm on 24 December until 12 noon on 25 December.

   8.6.2In 2018 and each alternate year thereafter, from 12 noon on 25 December until 5.00pm on 26 December.

   8.7      For Passover from the conclusion of school (or 12 noon if a non-school day) on the First Day of Passover until the commencement of school (or 12 noon if a non-school day) the following day.

4. That changeover take place at school where practicable and otherwise the father collect the children from the mother’s home at the commencement of his time and the mother collect the children from the father’s home at the conclusion of his time.

5. Each party be permitted to take the children overseas for holidays during periods in which the children are living or spending time with that parent pursuant to these orders, provided that the other parent is provided with not less than 14 days’ written notice of the intention to travel, including flight details, travel itinerary, accommodation and contact details during the proposed travel.

6. Each party do all acts and things and sign all documents necessary to ensure the children have a valid passport.

7. Each party use their best endeavours to ensure the children’s day to day belongings accompany the children between each parent’s home.

8. That the parents communicate with each other in relation to parenting matters via email.

9. The parties forthwith attend upon Mr G for reportable therapeutic counselling, with the costs of attending upon Mr G to be shared equally between the parties.

10. That each party facilitate communication (by text message and/or phone call) between the children and the other parent at times they are in their care respectively, with the parent to ring the children's mobiles.

11. Both parties do all acts and things and sign all documents necessary to ensure both parents can locate the children at all times on the “Find My Friends” app.

12. That each party keep the other parent updated as to the children’s mobile phone number and email address and advise the other parent of any changes within 24 hours. 

13. That each party keep the other parent updated as to their residential address, contact telephone number and email address (“contact details”) and advise the other parent of any changes to their contact details within 24 hours.

14. Each parent immediately inform the other in the event that the children or any of them are involved in a serious accident or suffer from a serious injury or illness.

15. Each party be restrained from denigrating the other parent or a member of the other parent’s family in the presence of the children or within their hearing.

16. Each party be restrained from discussing the Family Court proceedings in the presence of the children or within their hearing.

IT IS FURTHER ORDERED

1. That copies of the reasons this day and these orders be provided to psychologist Mr G and psychotherapist Ms H by the Independent Children’s Lawyer.

2. That the Independent Children’s Lawyer is otherwise discharged from the proceedings.

3. That the application of the mother filed 5 December 2016 and the father filed 3 November 2017 are otherwise dismissed.

4. That 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 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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adamson & Fuller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5740  of 2016

Ms Adamson

Applicant

And

Mr Fuller

Respondent

REASONS FOR JUDGMENT

1. This discrete parenting dispute focuses on the needs of E (aged 14) and F (aged almost 12 years).  Their parents are Ms Adamson (“the mother”) and Mr Fuller (“the father”).

2. It is common ground that both parents love their children but the disagreement here is about the discrete time that should be ordered for the children to spend with their father.  It is not disputed that the children will live with the mother.

3. The mother was the applicant and by her outline of case filed 17 November 2017, she sought orders that :

   (a)the parties have equal shared parental responsibility for the children;

   (b)the children live with her;

   (c)F spend time with his father from Friday after school until 12 noon on Sunday in each alternate weekend and for four nights a fortnight during holiday periods (providing that they coincided with the time of E with the father);

   (d)that E spend time with the father from the conclusion of school on Thursday until the commencement of school on the following Monday and on the Thursday through to the Friday morning in the following week; and

   (e)that the father spend time with E during school holidays for set times.

4. The father, who represented himself, sought the orders that he had set out in his further amended response filed 3 November 2017.

5. He sought orders that:

   (a)      the parents have equal shared parental responsibility;

   (b)      the parents and children attend upon therapeutic counselling;

   (c)the children live with him from the conclusion of school on Friday until the commencement of school on the following Thursday on an alternating weekly basis; and

   (d)that the children spend time with him for one half of all school holiday periods.

6. The father then sought a variety of ancillary orders which do not require significant mention because they are the subject of general agreement.

7. The Independent Children’s Lawyer who was appointed by the court sought the following orders:

   (a)      the parties have equal shared parental responsibility;

   (b)      that the children live with the mother;

   (c)that E spend time with the father on alternate weeks from after school on Thursday until the commencement of school on the following Monday morning and on the Wednesday or Thursday night in the alternate week;

   (d)that E spend time with the father for half of all school holidays;

   (e)that F spend time with the father on alternate weekends from the conclusion of Friday until 12 noon on the Sunday and during school holidays as recommended by Mr G but for no more than a four day block; and

   (d)that the parties engage with Mr G for the purposes of therapeutic counselling.

8. The common thread amongst the parties is that their relationship is highly conflictual and the children not only know it, but are affected by it.  Of real concern is that the parental relationship has descended to such a level of lack of communication that it is having an adverse effect upon the children but in particular, F.

Conclusion

1. Below it will be seen that the Independent Children’s Lawyer and the mother altered their positions slightly by the conclusion of the trial.  The father did not.  In my view, the best interests of both children are such that the orders proposed by the Independent Children’s Lawyer should be made but with the variation in the wording that I have set out.  My reasons follow.

Background

1. The parties had separated in May 2015 and proceedings were commenced in the following year.

2. On 19 August 2016, an order was made that the parties and the children attend upon Ms J as the court-appointed expert psychologist.  They did so in November 2016.

3. The paragraphs of the J report show that after a relationship of 21 years, the parties had enjoyed good times and that they had the “resources, commitment and lifestyle to take opportunities and provide their children with a stable, supportive and loving family unit”.  It would not be unfair to indicate that Ms J was perplexed about what was described as the communication problem.

4. All parties relied upon the evidence of Ms J and although it was contentious as to whether or not she was intended to do an update report and/or be called to give some form of evidence (which was the father’s position), I am satisfied that her evidence as indicated in her report, sets the foundation and context for what occurred over the ensuing 12 months and gives much insight as to what was going on between the parties.

5. In my view, there is sufficient evidence to enable me to form a view as to what the current position is between the parties and how the children are affected by their parents’ relationship.  I am also now in a position to form a view as to how the conflict between the parents is having dramatically different impacts upon the children.

6. When reading the J report, one would get the impression that she was concerned about why the parties had not been able to sort out their personal relationship.  Having had the advantage of all of the evidence I have heard, I am satisfied that it is a complex problem and difficult to identify.  Both parties talked in generalities in a very vague way.  The mother was represented by solicitors and counsel and her affidavit material was carefully prepared.  The father, as an unrepresented litigant, may not have had the advantage of the legal mind assisting him but he is an intelligent and articulate man who forcefully put his arguments.

7. During the hearing, the father complained that he had been prevented from giving evidence about what the children had said and wanted to rely upon that as the indicator of the source of the problem.  I reject his assertion that he was stopped from doing that.  I indicated at the invitation of counsel for the Independent Children’s Lawyer that if the primary source of what the children were saying to him was relied upon, it suffered the difficulty that it may not be accurate.  I detected that it was possible in this case, particularly having regard to the evidence of Ms J, that the children were saying things that their parents and in particular, the father, wanted to hear.  Thus, the evidence of Ms J to which I refer below, is critical.

8. When he was giving evidence, the father said he was told by his 14 year old daughter E about the “pressure” she was under from her mother.  The various terms used were conclusions rather than facts and I pressed him for explanations.  I wanted to know specifically what E had said and indeed, in one case, what F had said but the father was unable to be precise.  I am very conscious that Ms J was concerned about the over-involvement of the children in their family’s conflict but that should have made the father more vigilant about the nature of his discussions with E for the purposes of enabling the court to get some insight as to what took place in his household.

9. Later in these reasons, I shall refer to a number of incidents including the father’s attendance at C Town with the children, his approach to the mother’s lawyers and the consequent accusations against those lawyers for what he considered inappropriate handling of their role.  I shall consider a letter that he wrote to Ms J and his general approach to accusations against the mother concerning her lack of willingness to participate in therapeutic counselling.  Each in isolation could be seen as relatively innocuous arising from confusion or misunderstanding but combined, they paint a picture of the father as single minded and angry.  I find he does not accept that F has the problem described by the mother and which I find so concerning but even if he does consider there is a problem, he accepts that his contribution to it is not significant.

10. In all those circumstances and for the reasons that I shall now set out, there has to be a dramatic change.  From the father’s perspective, having finally got all of the parties to agree to attend a therapeutic program with Mr G, he took the view that there should be no change until Mr G had begun his work.  In my view, on the evidence before me, this case is much more urgent than that but even if it was not, I have no confidence that the father would reach any agreement with the mother about how to deal with the issues.  Mr G has his work cut out for him.  The father said in answer to a question I asked, that he would follow the advice of Mr G.  I suspect his position is that he believes so intensely in his own position being right that anyone who disagrees with him, will not be accepted as an advisor.  As such, I must work on the basis that this problem is of a longer term nature and to the extent that I am wrong and Mr G can assist the parties to alter their positions for the benefit of the children, they can adopt a different approach.

Ms J

1. The parties went to Ms J in November 2016.  Her report was released in December and is comprehensive.  The following evaluation must be seen as accepted by all parties as it was not challenged in evidence.  Ms J said:

   [110]Emotionally, and understandably, she has found her parents’ separation difficult; particularly, when she has had to publicly inform friends. This public recognition has meant that she has had to, perhaps before she was ready to, accept the separation. However, the indications now are that emotionally [E] is more settled.

   [111][E’s] wishes about her preferred living arrangement are quite muddled. She has variously reported that she wants equal time with both parents and to see each family the same; does not like the travel to her father’s house; does not like waking up earlier and does not like the single Wednesday overnight each week.

   [112]The evidence is, however, that the child has been seriously over-involved in the adult aspects and responsibilities of the parental separation. She knows her parents’ views on routines; and, given her loyalty to her parents, she essentially wants to please both. The strong indication is that [E] is attempting to solve the problem for her parents; by trying to find a solution to stop them from further disagreement. In her own words [E] chooses equal time ‘…so mum and dad stop fighting about equal times.

   [113]Therefore the child is inappropriately having to take responsibility for the adult decision-making. And, given the lack of communication between her parents, the evidence is that [E] is being further burdened by the role of messenger between them.

1. All of that evidence is quite troubling because the report indicates an assumption by Ms J that E was managing or coping with the parental conflict.  I accept that E is older and more capable of handling the problems that she encounters between her parents.  She is a different child to F but that does not mean the court ought not be concerned about her. 

2. Of F, Ms J opined:

   [116]From the information gathered from [F] in interview it is strongly suggested that the shifts and changes in [F’s] emotional health are directly linked to the parental dispute and symptomatic of the breakdown in parental communication and co-operation. In each parent’s account [F] was ‘joyful’ ([Ms Adamson]) and ‘happy and boisterous’ ([Mr Fuller]), during term one this year, when the parents spent time together for family events, including weekly dinners, birthdays and Christmas.

   …

   [119]The sibling relationship is strong and supportive but [Ms Adamson] and [Mr Fuller] need to be aware that the children may at times act-out their frustrations, anger and sadness with and against each other, or mimic their parents’ behaviour; and, why would they not?

3. The last quote from Ms J is almost prophetic because it is also replicated in the evidence below.  Ms J went on to say:

   [120][E] and [F] are securely attached to both parents. Notably, both children perceive it is their mother who provides the nurturing and is the parent they turn to if they are upset and need comfort.

   ...

   [122]…At the same time the children do appear to have adjusted to their father’s changed circumstances.

   [123]And while there is no indication that either parent would limit the children’s relationship with the other parent, it is [Mr Fuller] who seems more positive about the prospect of he and [Ms Adamson] returning to a functional co-parenting relationship.

   [124]The current shutdown in communication by [Ms Adamson] is, he believes, merely an aberration from their usual parenting relationship and simply a strategy to oppose his 7/7 shared care routine. In fact he maintains their respective parenting styles complement each other.

4. Of the last observation, I find there is little chance of that occurring for the foreseeable future.  The father asked the mother in cross-examination why they could not co-parent.  Although he asked the question in a number of different ways, her answer remained the same all of the time.  She said that she did not know whether exchanging pleasantries in front of the children would help.  That was in the context of the father’s statement that when he approached her, he always said “Hi” but she did not reply.  He asked if she thought it would help the situation if she acknowledged him as a parent but her response was that she found him untrustworthy. 

5. I asked how she found him untrustworthy and she replied that he needed to go to therapy.  I find his single-mindedness is over-bearing.  On the other hand, the mother appears to have followed the advice of Ms J and has been getting counselling.

6. Ms J then opined:

   [124]The current shutdown in communication by [Ms Adamson] is, he believes, merely an aberration from their usual parenting relationship and simply a strategy to oppose his 7/7 shared care routine. In fact he maintains their respective parenting styles complement each other.

   …

   [127]When outstanding matters are finalised, [Ms Adamson] and [Mr Fuller’s] parenting relationship might settle; so, hopefully, they might re-establish their previous good communication and co-operation to the benefit of the children. To assist them they may benefit from some short-term joint parenting counselling to strengthen their parental relationship and re-establish workable post-separation co-parenting strategies.

   …

   [132][E] and [F], however, require valued input from both parents. Their overall social and emotional development will benefit from substantial time with their father having him involved in all aspects of their life, as are possible.

   …

   [135]It is highly recommended, however, that before there is any increase in the number of nights the children spend with their father, [Ms Adamson] and [Mr Fuller] seek joint advice from the children’s treating professionals.

7. Two things are immediately apparent.  First, there is parental conflict although no-one expressly identified the reasons behind the dramatic 2016 fall.  Secondly, there is no prospect of any form of cooperation or for that matter civility, returning in the future which makes therapy problematic.

8. To the extent that the mother was accused of refusing to assist in a resolution of the problem, it was difficult to know from the father’s evidence what it was that she had done.  In her evidence, she wrote glowingly of E and her talents as a singer, dancer and performer.  She described the singing lessons on Friday afternoons, the school choir which practiced after school on Mondays.  She referred to the school music production and the scholarship that E had received in 2015 for recognition of her participation in school life.  E plays tennis in summer and netball in winter but as a student, she struggles academically.  She has a tutor for English and mathematics during school hours but she excels in creative subjects such as design, art and drama.  The mother’s position was that E had settled into a routine although she described her as suffering from anxiety.  E was part of a counselling program undertaken by K Health.

9. It was the father’s evidence that up until separation, he was very active in the children’s lives because he worked from home and that enabled him to participate in such activities as taking the children to school.  When that was put by him to the mother, she simply described him as spending an excessive time socialising and was away sailing (presumably) as a hobby.  She acknowledged that he was active with the children.

10. The father described the immediate separation time as one in which the parties had an arrangement for equal shared care of the children on a week about basis but at the beginning of 2016, he said the wife unilaterally changed those arrangements such that his time was on an ad hoc basis of approximately twice a week and every second weekend.  He said he did not want to exacerbate the anxieties of E who was settling into Year 7 at that time but it was his “understanding” that after Term 1, the parties would revisit the parenting arrangements.  When he raised it at the end of Term 1, the mother became “extremely angry” with him.  The mother’s reaction according to the father was to resort to lawyers.  That then led to the problems that brought the matter before the court.  In turn, that led to Ms J. 

11. In 2017, despite the suggestions of Ms J, parental communication shut down.  Having now seen the approach of the father to various things, I am not surprised.

12. In December 2016, with the parties before Johns J, and all represented by counsel, minutes of consent orders were signed for the summer holidays and indeed for the attendance upon counsellors.  Despite that apparent agreement, the father on two occasions during the trial said that he had communicated with the mother’s solicitors and they told him that they would not permit him time over the holidays.  This accusation has no substance and I refer to it later.  The father also alleged that the solicitors on behalf of the mother were not acting in the spirit of what Ms J expected.  That flies in the face of the consent orders immediately prior to Christmas 2016 which were very precise.

13. The father did not limit his criticism of the mother’s solicitors to the summer 2016/2017 school holidays but also to the school holidays in 2017 generally.  His vitriol towards the solicitors was quite concerning because it was unashamedly a suggestion of impropriety on their part notwithstanding that may very well have been their instructions.  He claimed that the Independent Children’s Lawyer wanted a shared regime in place and I asked him to produce the relevant letter.  He did so but it did not say what he purported it to say.  The Independent Children’s Lawyer was quite emphatic in saying that orders should be followed but if there was agreement between the parties, she would not stand in the way.  As I later observe in these reasons, the father had opportunities, including with lawyers acting for him at the time, to take action to resolve the parenting impasse.  He did not do so.

14. As the 2017 year rolled on, the financial issues between the parties became significant such that the father joined the maternal grandmother as a party to the proceedings as there was a dispute over the ownership of property.  There was then a dispute over the question of the sale of a property at C Town which was jointly owned by the parties and he equivocated at that time as to whether or not he would buy out the mother.  His equivocation at the time was sufficiently concerning for me to make an order for the execution of the contract documents.  I have no doubt that these financial issues exacerbated the personal relationship between the parties.  The father’s intense dislike for the maternal grandmother was palpable in the witness box.

15. I raised the issue of the sale of the C Town property because that led to another difficulty.  With the handover of the property to the new purchasers looming, the mother had to remove personal items from it.  She asked the children whether or not they wanted to attend to say goodbye to the property and went there to collect what she described as her items.

16. The father too went thereafter with both children and in cross-examination of the mother, he asserted that she had “stripped” the house bare leaving virtually nothing there.  The mother denied that and in reality, it is irrelevant.  However, on the trip to C Town in the father’s car with both children, he described F as constantly kicking the back of the seats in the car and calling his sister a “cunt”.  It was the father’s evidence, and denied by the mother, that the word “cunt” was regularly used in the mother’s home.  There is no doubt that from time to time that word has been used in its most vulgar sense.  No specific examples were given by the father such that I could determine whether or not it was in common usage but as I observed at the time, the interesting question is whether or not the children in using it, understood its pejorative context.

17. So unhappy about F’s behaviour was the father upon arrival at C Town that having walked into the “stripped” home, he said in the presence of the children and by reference clearly to the mother, that is what “cunts” do.

18. Counsel for the Independent Children’s Lawyer cross-examined the father at some length about that particular incident and I find in the circumstances that he was angry and had no control over his emotions.  To the extent that this dispute is about both children but in particular, F, being exposed to the parental conflict, this was poor parenting.

19. There were other incidents in which the Independent Children’s Lawyer invited the parties to attend upon a counsellor as had been ordered in December 2016 and the mother responded but the father did not.  I shall address that issue again below but I do not accept that the father did not know of that correspondence.  However, its significance lies in the fact that he accused the mother of not wanting to attend joint therapy.  I find that she was prepared to undertake it and indeed, she had followed up the advice of Ms J by getting counselling herself.

20. There were significant problems for F in 2017.  A report to which I now turn from K Health saw F attend because of suicide ideation.  The father did not accept that description and in the witness box, said that when he spoke to F, the child said that he had put his head under the water because his mother was angry but the report also shows that F was pulling out his hair. 

The K Health report

1. F was referred to the clinical psychologist Ms L at K Health by his school psychologist because of concerns around depressive symptoms, difficulty attending school, poor concentration, self-harm behaviour and anxiety around what was described as an upcoming Family Court assessment.  Thus, F had begun seeing this psychologist knowing that there was a dispute between his parents looming in court revolving around an appointment with Ms J.  In her evidence, the mother said that on the day that she was to see Ms J, F was agitated.  But Ms J’s report would indicate no significant difficulties.  I find in the circumstances that as the school psychologist had listed the anxiety of F pending the assessment by K Health, and K Health picked up that there was anxiety about the interview with Ms J, the mother’s version of what was going on at the time is probably accurate. 

2. The mother told K Health that F’s mood deteriorated in September 2016 where suicidal ideation, self-harm behaviour, pulling out of eyelashes and head banging was seen.  This is when the parties were having a dispute over what time each parent should have but particularly, considering the evidence of the father, it was he who was agitating a move away from what had been the agreement when E had commenced Year 7 earlier in the year.

3. F told the psychologist that he was worried about disappointing his parents.  The psychologist at K Health inquired what the respective parenting perspectives were and she was told that the mother wanted “full custody” and the father wanted an “equal shared care arrangement”. 

4. F’s problem did not commence with a separation of his parents.  Both parents told K Health that he was a sensitive and anxious child and that there was a history of separation anxiety as well as anxiety in new and unfamiliar situations.  He had been an unsettled infant.

5. F did not present to the psychologist as having a depressed mood but he did speak about his sense of divided loyalty and some anxiety around his parents’ separation. 

6. The psychologist last saw F in April 2017 and opined:

   [F] presents with anxiety and distress in relation to the acrimonious parental separation.  These difficulties escalated in September 2016 around the time of Family Court proceedings, where there was some uncertainty about care arrangements.  [F’s] exposure to his parents’ acrimony has contributed to his experience of feeling caught in the middle of their conflict and the sense of divided loyalty.  Their ongoing discord and inability to work together is likely to perpetuate [F’s] confusion, guilt and anxiety.  This situation is likely to have exacerbated [F’s] history of separation anxiety, particularly around a period of change, where there is some uncertainty around caregivers.  This also makes it difficult for [F] to leave (the mother’s) care in the current situation.

7. The evidence of the report of K Health was admitted with agreement of all parties.  The quote just mentioned is significant.  Leaving aside the ongoing discord of the parents, the conflict has exacerbated F’s history of separation anxiety and there is now evidence of his uncertainty around a change of caregivers.  It makes it difficult for him to leave his mother.  That situation has not been ameliorated by changeovers at school.

8. In April 2017, Ms L diagnosed F has having an adjustment disorder with anxiety and (fluctuating) depressed mood.

9. The psychologist opined that as treatment progressed, a “limit” was reached due to the parents’ acrimony.  The psychologist opined that they would have to set aside their differences and utilise the time to focus on helping F.  They did not do so.

10. The evidence of the psychologist is alarmingly and relevant because it now means that F is not being treated nor can he be.

Ms H

1. Ms H is a psychotherapist engaged at F’s school.  She was described in vague terms as a counsellor.  She was subpoenaed by the Independent Children’s Lawyer to give evidence but counsel expressed concern in open court, that Ms H did not want to tell anyone what was being said by F because she felt that it would breach his trust.  After much argument over a number of days whilst the case was pending, the parties ultimately agreed that she would not be called.  She is a safe haven for F and has been so for the best part of five years.

2. When the case began, I understood Ms H to be simply a person for F to talk to at school because that was the impression conveyed by the father.  He said (and I consider he still believes) there is some form of relationship between the mother, Ms H and F such that F is encouraged to see Ms H on the basis of what the mother tells him and that he is not really involved in any of this “counselling”.  He described Ms H as F’s best friend. 

3. It was only on the cross-examination of the father that Ms H’s qualifications as a psychotherapist were produced and tendered.  The father now accepts her qualifications.  She is a highly qualified person whose training is in psychology and her relationship with F is important having regard to what I have just said from K Health report.  F is getting no other assistance other than that which is provided by Ms H.  Thus, any forthcoming therapy arrangements to be overseen by Mr G, where the focus will hopefully be on the parental conflict must start quickly.  I am of the view that it is important that F be protected as much as possible from further exposure to that conflict.  Ms H therefore is an integral part in the protection of F.

The manifestation of F’s anxiety

1. The parties have a very different perspective of their son’s problem.

2. The mother described F as sensitive and being bullied at school.  He is now questioning his own sexuality.  She said he found it difficult to make friends with boys at school of his own age.

3. From the father’s perspective, F is highly emotional and prone to physical outbursts when upset.  His perspective however was that this behaviour is attributable to the age and state of development as well as the adjustment of the child to the parties’ separation (see [31] of the father’s affidavit).  As a result of advice from another psychologist, the father said that he was trying to teach the children that yelling and screaming would not get a result and that it was not an appropriate way to deal with their feelings.  He acknowledged that the children fought between themselves but he talked to them individually and his form of discipline was removing their respective Iphones.  Having regard to the advice of K Health, the father’s perspective is too simple.

4. It was the mother’s evidence that since separation, F’s behaviour has regressed but he is also afraid of the dark and has continued bedwetting whilst acknowledging that was occurring prior to separation.  She described him as sensitive to criticism and that he broke down easily and cried.

5. The father’s perspective however was that F was experiencing “some particular difficulties at the moment”.  He described F as being at high conflict with both parents as well as E and has outbursts and use of poor language on a daily basis.  He acknowledged that F was attending upon the school counsellor but complained that he was unable to get updates as to F’s progress.  He did not say how that was a problem and told the court that he had only met Ms H at the court when she answered the subpoena.

6. The mother said that F described a difficult relationship with is father including his father criticising him and using pejorative language about him.  The mother described F as saying that he hated his father and not feeling safe at his father’s home and also having been accused of being a “cry baby”. 

7. For his part, the father described both children as having always been vocal about parenting styles and the living arrangements they would like and whilst E has consistently said that she wanted an equal shared arrangement, “F swings in what he wants”.  I do not accept that is symptomatic of age and development because of the evidence of the K Health but also the constant need for F to attend upon Ms H for emotional assistance. 

1. The mother described receiving text messages from F in February 2017 talking about a panic attack and demanding to be picked up rather than staying with his father.  She provided those messages.  She saw F on the following morning at school and persuaded him to go to Ms H.

2. It is this latter discussion between the mother and F that seems to upset the father.  He has described that relationship between the mother, Ms H and F as close and by inference, that it is inappropriate.  The text messages were sent to the mother and F no doubt saw Ms H.  All of that was after Ms J saw everyone but also during the time that K Health was monitoring F.  There is clearly a problem between F and the father albeit he dismisses that suggestion.

3. Consistent with that view, the father sent an email to the mother’s lawyers saying:

   You are not only trying to publically humiliate and break me but ultimately you will ruin our children…under the current care arrangement (the mother) has gladly overseen a worsening of [F’s] condition and this will be reviewed too…

4. Objectively looking at the events around March 2017 and particularly as a result of what K Health said, there was no basis for the father’s assertion.  Whilst there has been criticism of the mother in relation to the deterioration of her communication and relationship with the father, it is hard to see how she could have responded any other way to F’s needs than to encourage him to get advice from the only person who seems to be his safe haven, Ms H.

5. In August 2017, the problems had still not been resolved and F was becoming resistant to time.  The mother persisted in having him attend.  Over the months between March and August, the interlocutory financial dispute between the parents raged on.  In June 2017, the father sent the mother’s solicitor an email relating to a school choir trip for E in which she went as a parent chaperone at her daughter’s request.  E requested that F not attend but apparently, the mother persisted.  The father then wrote to the mother’s solicitor in pejorative terms again describing E as extremely hostile but he was critical of the mother’s “intrusion” in what was undoubtedly an important event for E.  He said that E told him that her mother was a “fucking bitch and a whore” and he described this inappropriate eruption as a reflection of the frustration E had with her mother.  Rather than such conduct in the children being encouraged or accepted, I find the mother is very frustrated by these outbursts but the father candidly acknowledged that he used that sort of language in front of the children as I have earlier described.

6. Things have not become better as the final hearing approached.  In evidence (GA11), is a “list” written by F about his father during a counselling session with Ms H.  F describes feeling uncomfortable and not being helped by his father when he had a panic attack and that his father “won’t listen” to his opinion and breaks “the rules and the law”.  Of his mother, he wrote that he was always asking why he had to go to his father’s home because he did not want to go and that he felt “sick” and “dizzy” when made to go.  This letter was the subject of considerable criticism by the father who maintains this is indicative that at various times F says and does things but that they are a passing phase.  He described the weekend immediately prior to the court hearing as one in which F cuddled into him and was teary.  The objective evidence suggests F is very troubled and does not want to spend the extensive time that he has been having with his father.

7. On the weekend immediately prior to the hearing, an incident occurred in the father’s car in which F was distressed to the extent that the father stopped driving outside a primary school and F described a shouting match.  So heated did it become that E intervened and grabbed F.  F described to his mother being very frightened and cowering. 

8. The father was cross-examined about the incident and indicated that the conversation started much earlier than that described by the mother, and he would know, because he was there.  There was a discussion about the particular set of writings by F having been shown to a variety of people and F was upset because it had disclosed his confidence.  Even if that was so, the father highlighted the problem by discussing it with F rather than leaving it to the experts to sort out.  He described the words used by F as strong expressions and that the language was how F talked about things.  It was the father’s evidence that this writing down in the emotive language was how F did things but on this occasion, whatever had exacerbated the problem, F had punched E in the leg.  The father described the discussion that ensued as one that was not heated but F was certainly using words like “hate” and he then said that he talked with F about Ms H.  I consider that discussion was rather odd having regard to his own concern about F’s relationship with Ms H.  In any event, the father described the explosion as being over in a few minutes.  Importantly, it was the father who raised the subject with F about how he felt about Ms H talking about him in court.  That sort of conversation needs to be considered by an expert as F is a very emotional and volatile child. 

9. In the father’s view, and he made no secret of the fact, the mother was alienating the children and specifically F from him and that he was the “target parent”. 

10. The father’s view about everyone else being wrong and manipulating the situation to exclude him from the lives of the children can best be seen in the letter that he wrote by email on Saturday 4 November 2017 to Ms J.  This was a curious letter because Ms J had not been engaged at that time to do an updated report from her earlier assessment in 2016 and everyone knew that.  The father’s description however was that Ms J was some sort of person assisting them but even that does not make sense having regard to the correspondence that Ms J sent to all parties indicating that she had not been asked to update her report.

11. I do not intend to set out the details in full but the letter runs to three closely typed pages and the vitriol was unrestrained.  The father was critical of the mother including the reference to the C Town trip and the “ghetto language” used by F which he said occurred on a daily basis.  He accused the mother of initiating the drawings (or written thoughts) of F and his explanation for that was concerning.  He said that F was in trouble with him for using abusive language.  I understood him to mean that he had criticised F as a consequence of which, the mother had arranged for F to write down his thoughts and give them to Ms H.  Without some better examination by the father of what was happening between Ms H and F, there was no foundation for his criticism.  Having heard the evidence of the mother, I find that she has been worried about F’s presentation and it is consistent with what I have set out as her unchallenged evidence. 

12. The father told Ms J in his email that what he saw in the actions of the mother was consistent with the actions of his own mother when he was a child embroiled in a divorce.  However, and indicative of his views, the mother was engaging in “similar exploitive patterns” to his own mother. 

13. In relation to K Health, the father described the mother as playing the “self-harm card” and went on to observe that she had been rebuked by Johns J and later K Health.  There is no evidence that that is correct.  No transcript was provided to me to suggest that Johns J was troubled about the mother’s approach and more importantly, the evidence to which I have referred provided by K Health makes it clear that they were troubled about F but they could do nothing further for him until such time as the parental conflict was sorted out.

14. The father said that K Health was dismayed at the mother’s reluctance to undertake real family therapy.  In this regard, he pointed to the assistance that the parties had been receiving from a Ms M.  Without his knowledge, he said that the services of Ms M were terminated.  The mother gave a plausible explanation for all of that.  She said that E saw Ms M as an older woman of a grandmotherly age and did not want to return.  If the mother is to be criticised at all, it is the fact that she did not discuss that issue with the father.  But, such was the relationship at that stage.

15. The father could not help but write about the mother’s lawyers in pejorative terms but then described himself.  He said:

    It upsets family, friends and parents who know me as a father that (the mother) is playing a fictitious game to create maximum conflict.  Her lawyers want to make this the basis to reward (the mother) as the sole parent.  Even though ICL have expressed in pre-trial to Justice Cronin that they are not going to support the mother’s application for the sole parent, the sense of entitlement and deep pockets the (mother’s) family possess that is feeding this court case is to the detriment of the (sic) [E] and [F].  No-one seems to care or is questioning the narcissism of the mother and her scorched earth approach.

16. Those sentiments sum up the father’s position accurately.  He reiterated his position in final address that he was the good father and everyone would support him.  No such evidence was produced.  Even if it had, I would be surprised if such persons would agree knowing what the court now knows.  It is concerning that the father accuses the mother of alienation and of being a narcissist.  He has no respect for her and all of the evidence I heard, including of his cross-examination of the mother, indicates that she was struggling to deal with a serious problem and getting little assistance from him.  In my view, the father does not recognise the problem.

17. The orders each party seeks fall within the definition of a parenting order. A parenting order made under s 64B of the Act may deal with a variety of matters about how parenting roles are fulfilled. One aspect is the division of time (s 64B(2)(b). Another is the allocation of parental responsibility. All parties want an order to be made for equal shared parental responsibility but that means equality of decision-making about their children.

18. The agreed position here is that the parties do not communicate. From the father’s perspective, the mother is not just refusing to participate in co-parenting or at least giving the public appearance of such but deliberately undermining his role to distance the children from him.

19. If an order for equal shared parental responsibility is made, s 65DAC of the Act requires that in relation to decision-making, the order is taken to require the decision about major long-term issues to be made jointly. That means
    (s 65DAC(3)) the parents are to consult each other about the issue and “make a genuine effort to come to a joint decision”. The lack of communication precludes that although each acknowledges that decisions are still made without major difficulty. The evidence of the father about his own letter to Ms J in anger exudes hatred towards the mother. However, the father says he does not hate the mother at all. Actions speak louder than words.

20. The mother does not trust the father and says he manipulates situations. She will not communicate with him and fears his aggressive behaviour which she described as including banging on her car and waving her away from the doors of his apartment block. His explanations were that those actions were innocuous because he was just indicating that she could move off as the exchange of the children had been completed.

21. I explained the “balance of probabilities” concept to the father before the case fully began so he would understand my approach in deciding which of two versions was the more probable. In nicer times when there was civility between the parents, the explanations of the father would be seen to be plausible but in the context of his vitriolic letter, his accusations of alienation are unsupported by evidence.  His use of the pejorative word “cunt” to both children to explain that their mother’s conduct in “stripping” the house (as he saw it) was what “cunts do”, gives insight into the person but also make the reticence of the mother to deal with him, understandable.

22. But for the request of all parties to make the equal shared parenting order sought, I would not find here that the requirements of s 65DAC could be met. Counsel for the Independent Children’s Lawyer urged me to make the order because there were now few, if any, opportunities for the parties to have to make those sorts of decisions. In my view, the court should be hesitant to adopt such an approach but the reality is that these parents have to parent their children. There is a limit to what the court can do and this case epitomises that limit. In my view, if a problem arises, under which a stand-off occurs about such major long-term decisions in the future, the parties will heed these words.

23. I return then to the time aspect of the lives of these children. The father’s position in final submission was that it would be “wrong” to alter the status quo particularly until the proposed therapeutic counselling has occurred.
    He submitted that it was not “productive” to make a change to the status quo because that would not be “good” for F. His view is that F will see the approach of the court as having interfered with his privacy because F’s letter or drawing which was, according the father, written at a particular time of emotional anger. I reject that.  The pressures that have been on F for at least the last five years and his having to resort to counselling, indicate he is still having difficulty making sense of his parents’ conflict and he does not like it.  It is chilling to consider that F was 7 years old when in need of counselling.

24. The father’s position was also that everyone who knew the family could see that he was a loving and caring father and this focus by the mother in the litigation was contrived. That is, the mother saw an opening and barged on through to remove his time with F. That submission too is not supported by the objective evidence of the K Health, Ms J and the position of F as expressed to his school psychotherapist Ms H (albeit her evidence was not provided).

25. But the father also submitted that if there was a change to the orders relating to F, the mother was running the risk of damaging her relationship with E. How that could be possible was not said but I can only conclude that E would understand that her father was victimised in some way and start squabbling with her mother. The only evidence of any tension in the mother’s present relationship with E came from the father. He said that E told him that when she said she was going to go and live with her father because her mother would not allow her to be out with her friends at 6 pm or something to do with being denied ice-cream, E reported that her mother said she would be living with her grandmother before being allowed to go to the father. The father said that he explained to E that the mother’s disciplinary approach was correct (although I remain unsure about whether he agreed with the grandmother concept).

26. The description of the father about how he approached the discipline issue sounded plausible until he added that E then complained that she had obtained her mother’s mobile telephone and had seen “screenshots” of the texts between E and her father. This she said was “spying” by the mother. None of this evidence was led by the father and it only arose in my endeavours in his re-examination to get some sense of whether there was corroborative evidence to support his assertions which are vague and hard to define. He was unable to tell me whether anything in the texts was anything more than innocuous banter but it was the taking of the screenshots that was most upsetting. I consider it is equally sad that the parents could not raise that with each other. It is concerning that the father did not say to E that she should discuss it with her mother to see why it happened. The father did not dispute that there were responsibilities on parents to monitor their children’s telephone use. It is unfortunate that this evidence, along with some other matters that were not put to the mother, occurred at all.  The court was given a limited insight into what happens in the father’s household.

27. I hesitate to reject the evidence of the “spying” but am very mindful that the father says that E told him that her mother was hiding behind a fence when the handovers took place. Why she would do that is a mystery but at least, it was an allegation that he put to the mother and she denied it. The court was not told when E said these things or why. If they occurred at the handover, why was this not a subject raised either at the time, in correspondence or in some form of evidence. The mother not only denied allegations of that nature but usually gave explanations that put whatever occurred in context.

28. I find the evidence of the conversations between the father and E concerning in the context of the father’s assurance that he does nothing to undermine the mother. How do these conversations arise? Whilst E has only just turned 14, she is still a child. Of that 13 year old child, Ms J said this:

    [112]The evidence is, however, that the child has been seriously over-involved in the adult aspects and responsibilities of the parental separation. She knows her parents’ views on routines; and, given her loyalty to her parents, she essentially wants to please both. The strong indication is that [E] is attempting to solve the problem for her parents; by trying to find a solution to stop them from further disagreement. In her own words [E] chooses equal time ‘…so mum and dad stop fighting about equal times.

    [113]Therefore the child is inappropriately having to take responsibility for the adult decision-making. And, given the lack of communication between her parents, the evidence is that [E] is being further burdened by the role of messenger between them.

29. Ms J’s warning is a year old but the fact that these discussions are taking place is concerning and no doubt will be brought to the attention of the proposed therapist.

30. Those observations are concerning also because of the father’s threat that the mother’s relationship with E is at risk if there is an alteration to his time with F. Why would that concern E? The evidence of the father is that on the trip to C Town, F was horrible in his behaviour kicking the back of the seat and generally using language that indicated he understood the meaning of the words he was using. But as late as a week ago, there was a dispute in the car between the children such that F was attacking E or vice versa. One might have thought the absence of F might bring some calm to troubled waters.

31. Of the relevant relationships , and in particular that which the father says may be under threat, when Ms J observed both children with the mother, she described the following:

    [59]…(the children) were overheard …playing happily in the street…

    [60]…(the children) presented as joyful, upbeat, cheerful, lively and very polite children. They sat with the mother listening to instructions about the day. There was general discussion. …

    [61]From observation of the children with their mother it was evident the children enjoy a secure, supportive relationship with (the mother). She in turn was attentive, gentle and loving towards them.

32. The common denominator in the area of problems seems on the evidence, to be the father.

33. Bearing in mind Ms J’s observation about E being over-involved in the parenting issues, she also observed the children with their father as relaxed, comfortable and familiar. They parted “affectionately” from him.

34. If something dramatic has happened to E in the last 12 months, it is not apparent from the evidence. It must follow that, absent some evidence, and the mother gave none, something is happening in the father’s household to further involve E in this dispute between her parents. I have already canvassed the various pieces of fact the parties presented and it is clear that E knows what is going on. E has been present when the father has expressed his dissatisfaction with the mother. I find in the circumstances that it is probably the way the father deals with E that would lead him to say that the relationship of E with the mother is in jeopardy.

1. Despite the glowing indication of Ms J that all was calm, the mother told the court that F did not want to go to that same appointment. She said he began to upturn a table and was angry. He thought that Ms J was there to take him away and that he did not want to go to his father. Ms J did not see that side of F and when the mother told her of what had happened, Ms J dismissed it. Ms J was critical of both parents even to the point of saying that the current impasse seemed rather “disingenuous” and the breakdown in the communication seemed “almost hypocritical”. But it cannot be ignored that F has been having counselling for five years and the father’s propensity to anger as exhibited in the letter he wrote to Ms J, indicates that Ms J did not have a full picture.

2. If I add the subsequent hospital involvement of F in which there was talk of suicide ideation and self-harming, a very different picture emerges. The suicide ideation according to the father was explained to him by F (as distinct from any expert) as the child putting his head under water and holding it there because he was angry with his mother. The self-harm was similarly described as F tearing his hair out. Despite the father brushing aside such serious manifestations of a problem, the hospital psychologist said F had an adjustment disorder with depressed mood. All of this was attributable to the parental conflict. It should not be lightly dismissed.

3. Such was the level of scepticism of the father that he described Ms H as a friend rather than a professional counsellor. It took the presentation of her curriculum vitae to be produced to have the father’s criticisms become more muted. He still maintains that the counsellor is part of some group involving the mother to affect his relationship with F.

4. The father cross-examined the mother about her involvement with Ms H even down to the number of emails and contacts they had had. I am satisfied any scurrilous suggestion of any professional impropriety is unfounded.

5. There is a concerning but consistent approach relating to the father’s complaints about the mother’s lawyers. Whilst his language was emotive, he was asserting the lawyers were acting inappropriately. This evidence was both scandalous and broad and, as with some other things about the father’s evidence, short on substance. Only when pressed for some explanation, justification or description, did something more solid emerge.

6. The father said that he contacted the mother’s lawyers about the summer holidays of 2016-2017 only to be denied time with the children. When examined, that was without justification. On 15 December 2016, specific orders were made by consent which included the immediate pending holidays. The father was represented by counsel at the hearing. The hand drawn minutes show changes were made to a draft document such that the ultimate typed order was an accurate reflection of what the parties agreed and, as transpired, what the parties wanted. The fact that the orders may have been inconsistent with the philosophical approach “to move forward” by Ms J, was irrelevant. Each got what they wanted.

7. The father said these same orders were altered on 23 December 2016. No such hearing occurred.

8. In respect of the 2017 school term holidays, there was no provision in the orders and correspondence followed. To the extent that the parties disagreed, and it is clear that they did, no “deal” could be brokered by the Independent Children’s Lawyer. Whilst the clock ticked by, an application was made by the father prepared by his lawyers to join the maternal grandmother in the financial dispute. No parenting orders were sought. The matter was before the court twice thereafter relating to the sale of property on an interim basis yet no application to resolve the parenting impasse was filed.

9. I asked the father whether he wanted to tender the written correspondence to corroborate his point. He had all of his documents on his laptop. I observed that all of this correspondence would be in the hands of the mother’s lawyers who could easily have produced it. The father declined to call for, or produce, that correspondence. There is no other evidence available to establish that he was denied time albeit it establishes there was an impasse.

10. When trying to explain himself, the father referred to the fact that the solicitors (and by inference the mother because of their instructions) were not keeping to the spirit of what Ms J had opined in late 2016. A reading of what that psychologist wrote debunks any such observation. Even if there was a glimmer of light in what Ms J was anticipating, it was soon snuffed out by the approach that the father took.

11. The father said that he wanted to go to the J-recommended therapy and that the mother was resistant. I find the exact opposite occurred.

12. Immediately after the J report was released, the parties came before Johns J in December 2016. An order was made for the parties to attend counselling. It did not happen. The father took no steps. Two letters were sent inviting him to go and were similarly sent to the mother’s solicitors. The mother agreed yet the father remained unresponsive. When asked about these requests, he did not remember the letters but all of them appear to have been sent by email. He had the laptop in front of him and made no endeavour to see whether they were there. Needless to say, even if the mother was recalcitrant in some way, the father made no such arrangements to comply with the orders.

13. When pressed, the father said that he had a lot going on at that time and could not afford lawyers but that does not explain his silence.

14. In all of the circumstances, it is difficult for me to find fault with the mother’s approach to parenting. She got on with parenting the children. It is difficult to find positive things about the father to indicate that he wanted to reduce or resolve the conflict. Thus, accepting that F has the problem diagnosed by the K Health; having found the hospital psychologist had identified the source of the problem; and having found that F wanted to be removed from the conflict, the context is set to determine what order should be made.

15. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. (Section 60CA)

16. I find the vulnerability of F must mean that any orders have to be carefully considered in the light of the findings I have made. It is important to keep in mind the mother is the parent to whom both children turn for support according to Ms J. It is important not to destabilise that relationship.

17. In the Supreme Court of the United Kingdom in In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144; [2011] UKSC 27 the following (albeit in relation to a Hague Convention matter) was said:

    We start from the proposition that all parents love their children and want what is best for them. Even if the parents fall out with one another, they should be able to work out what will be best for the children. They, and not the courts, are the experts in their own children. They should be able to see their children's interests separately from their own. They should be able to negotiate the "least detrimental" solution for them, with the help of a skilled mediator if they need it.

18. I find here that these parents do love their children but they cannot parent them in the way that the community expects. It is important then to search the evidence to see whether some outcome can ameliorate not just the dilemma of the child but also the dilemma of the parent in grappling with that problem.

19. Part VII of the Act dictates that a parenting dispute should be determined on “best interests” principles. Those principles are guided by the philosophy of the Act. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) provides its legislative objects are to ensure that the best interests of children are met by:

    (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

    (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

20. The inability of the parents to end their conflict (which is not unusual in many parenting cases) is now seriously affecting F. E seems to be able to manage better. I cannot discard a serious assessment such as that provided by K Health. I cannot disregard the caution accepted by all parties of breaching the confidential relationship between Ms H and F. To ignore all of that would be looking only at the father’s wishes.  I find that the desired “maximum” extent contemplated by the father as to time is not consistent with F’s best interests.

21. I find also that F is exposed to the conflict when there is no need for that. It is not the mother’s doing as asserted by the father but rather, his inability to recognise that he is contributing to the problem by demanding the time he wants. That is not responsible parenting as contemplated above. That however, does not resolve the quantification of parental time.

22. Section 61DA requires the court to apply a presumption of equal shared parental responsibility when making a parenting order. That presumption is that it is in the best interests of a child for the parents to have equal shared parental responsibility. The presumption does not apply if the Court has reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. That finding is not made here although I find very concerning the denigration of the mother at C Town. I do not accept that this sort of vulgarity is part of the language of the children or of the mother’s family. It is certainly part of the husband’s way of expressing things.

23. Section 61DA(4) provides that the presumption may be removed or not applied if it is not in the best interests of a child that the parents have that responsibility. But for the agreement of the parents, I would not make such an order.

24. Because an order for equal shared parental responsibility is made, the court is mandated to consider s 65DAA. It provides that the court must consider an equal time order. That is not necessary because neither party seeks that.

25. If however, the court does not make an order for equal time, it must consider whether the children spending substantial and significant time with each parent is in the best interests of the children and reasonably practicable and if it is, consider making such an order.

26. Substantial and significant time is defined to mean time that falls on both weekends and weekdays but also when it does not.  The legislature intended that parents participate in the daily routines of their children as well as share responsibilities that often fell to one parent after a separation.  The philosophy is clear in the section that parents should spend time with their children on occasions and for events, of particular significance to the child and special significance to the parents.

27. Thus, if time is not to be shared equally, substantial and significant time must mean something very close to it if that philosophy is to be fulfilled.  It is a lot of time in a child’s life.

28. In F’s case, the proposal of the mother and the Independent Children’s Lawyer could not meet that definition.  However in the case of E, their proposal allows that to occur but to a limited degree.

29. The father’s desire remains for there to be an equal sharing of time for both children but particularly E which would be expected to meet the definition.  He made clear he has adopted a modified position reluctantly because he has maintained always that he wanted equal time. 

30. For both children, I remain of the view that the quantum of time has to be determined within the framework of the section but tailored to meet the needs of the children.  If the needs of children cannot be met by pursuing the extended limits of the definition of substantial and significant time from a parents’ perspective, the needs of the child must hold sway. 

31. Section 65DAA(2) is a mandatory provision.  The court is required to consider whether it would be in the best interests of each child but also whether it is reasonably practicable.  If the answer to both is in the affirmative, an order must be made.

32. I find that E and F are very different children with different needs even if the father disagrees.

33. Section 60CA requires an assessment of the factors in s 60CC to determine what is in the best interests of these children. Consideration of those factors focuses on the capacity of parents to fulfil the needs of their children. The ideals that guide those needs are set out in s 60B.

34. Here, I find the relevant primary consideration in s 60CC(2) is that both children benefit from having a meaningful relationship with their parents but that benefit in E’s case is enhanced by more time than F.  She has a close and secure relationship with both parents and accordingly, I conclude that they are important people in her life.  She benefits from their love and support but also their discipline.  The downside is her need to make decisions to endeavour to resolve their conflict.

35. F on the other hand, has a difficult relationship with the father at present.  The father’s view was that F’s relationship with both he and the mother is difficult but I do not accept that.  Despite what seems to be emotional chaos in F’s life such that he requires a safe haven at school, he wants time with his father.  Based on the K Health view, I find he would be better stabilised with the routine times and discipline to attend school organised predominantly using his mother’s home as his base. That will continue until his relationship with his father is seen by F as more important than it presently is.  He is a very confused child.

36. I find that the relationship between the father and F is conflictual but not so with his mother.  The evidence supports a finding that F is more demanding of his mother’s affection and support than he is of his father’s.  F’s description of his relationship with his father, albeit different to how his father sees it, is one of uncertainty.

37. The benefit to F of any meaningful relationship with his father is currently for shorter and more concentrated leisurely times where conflict may be lessened because his anxiety and stress are lessened.

38. Section 60CC(3) provides an opportunity for the court to assess a number of additional considerations.  The views of the children are presently clear.  E wants more time with the father but probably for the wrong reasons.  F wants less time but not to be excluded from his father. 

39. The nature of these relationships is very different and it is those concepts that guide the determination of contact time.

40. Each parent maintains the children financially in different ways and each desires to have a role in parenting.  In the case of the father however, I find that his approach is too confrontational and it is affecting F.  In the case of E, her role as a messenger and indeed her discussions about the mother with her father, are troubling.  I accept she is 14 years of age and entering a new phase of her life but Ms J’s warning is clear to stop involving her in the conflict. 

41. Most significantly, s 60CC(2)(d) mandates the court to consider how any changes would impact on the children by the separation from either parent.  The views of E will no doubt change rapidly and the parents would do well to heed the therapist’s advice because of the short period left in her childhood.

42. F is different.  He wants security and attention to overcome his confusion about who he is.  An absence of significant time from his father will see him settle pending the work of the therapist being undertaken. 

43. There are no difficulties about transporting these children backwards and forwards even if E expresses dissatisfaction with that concept.  Those matters can be adjusted with the therapist’s assistance. 

44. I am very concerned about the capacity of the father to see and understand the needs of F to have his emotional demands met.  They are certainly not being met at the moment.  A similar finding could be made about E but I accept she is more resilient that F. 

45. Section 60CC(3) also requires the court to consider whether the parents’ attitude is responsible and I have serious questions about the focus of the father at the moment.  His approach is parent-centric not child-focussed and I question whether that permeates his relationship with E too.  He needs to rethink his relationship with F to alleviate the child’s anxiety. 

46. I do not need to make findings about family violence or child support here as those are considerations not affecting the outcome.  In my view, the orders for E meet the test of substantial and significant time.  In the case of F, they do not but it would not be in his best interest to contemplate anything like substantial and significant time that would accord with the definition.

47. The proposal of the mother and the Independent Children’s Lawyer in respect of E would see her spend five nights per fortnight with the father during term time but otherwise half of the holidays.  The father’s proposal was six nights per fortnight.  Having regard to the nature of the relationship, I consider that E should not be the messenger and should not be engaging in discussion with her father about F’s problems or E’s relationship with her mother.  Those discussions fuel further problems.  E needs a base and a routine and Ms J indicated that the mother was more available than was the father.  I find in the circumstances that the proposal of the mother and the Independent Children’s Lawyer is best for E.

48. E manages the separation of her parents reasonably well.  She is a self-confident children and has good self-esteem.  Of the two parents, she thought her mother was the more supportive.  Her preferred position in terms of time was one week with each parent but as I have indicated, that explanation was justified by convenience and a desire to stop the parental conflict.  E is therefore carrying the weight of parental responsibility that she should not have to at the age of 14.  I find that quite unfair. 

49. Ms J thought that the mother’s availability was a factor in the determination and being closer to the school and the various networks involved for E, the mother’s role affords stability and security of routine that E needs.  Accordingly, I accept the Independent Children’s Lawyer’s proposal.

50. A sharing of the holiday must depend on whether or not the father can have time away from work.  I take into account however that E is independent and also 14 years of age.  I would expect her to have a significant say in the time she spends with each parent during those holidays.

51. The issue of F is very different.  I find that with the non-acceptance by the father of what I have set out, F is at risk of emotional harm.  That risk is unacceptable because of the advice of both K Health and Ms H.  Until that issue of risk is ameliorated, the father’s time with F should be restricted.

52. The orders proposed by the Independent Children’s Lawyer relating to F meet his best interests.  To avoid a repetition of the father’s past allegations, I make clear that the holidays for F should be limited also.  I consider four days is sufficient time to give him the security that he needs knowing that he can return to his mother but also at the same time, enjoy and develop his relationship with the father.  Over the pending summer holidays, whilst there is a total of six weeks, E will spend three weeks with each parent (or thereabouts) and F’s time should be limited to the four days at the beginning of that three week period.  The rest of the time he can settle into a routine with his mother and the therapy work can be contemplated.

1. If arrangements can be made for an extension of that time for F, it should only be after consultation with Mr G.

2. The orders that I have pronounced are otherwise in the best interests of these children.

I certify that the preceding One hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 November 2017.

Associate: 

Date:  30 November 2018