ALLSOPP & DENNERLEY
[2021] FCCA 1204
•12 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALLSOPP & DENNERLEY | [2021] FCCA 1204 |
| Catchwords: FAMILY LAW – Parenting – dispute about the time children aged 8 & 4 should spend with their mother – where the father is proposing four nights per fortnight with this to continue during the school holidays – where the mother is proposing six nights per fortnight and half of the school holidays – where the mother has mental health issues which have resulted in her behaving violently and struggling to properly parent the children – where the mother has a long history of cannabis use and is currently using cannabis – where the older child’s relationship with the mother has some issues – where even the time the father is proposing could be problematic – where the Independent Children’s Lawyer recognised this but in the end supported the father’s proposal – orders made as proposed by the father – dispute about parental responsibility – where the presumption in s.61DA does not apply – where the parents have a poor relationship – where the father is conflict-avoidant which could lead either to the father giving in to the mother or important decisions not being made – where an order that the father have sole parental responsibility is the order which is in the children’s best interests. |
| Legislation: Evidence Act 1995 (Cth) s.128 Family Law Act 1975 (Cth) ss.60CC, 61DA |
| Cases cited: Mazorski & Albright (2008) 37 FamLR 518 |
| Applicant: | MS ALLSOPP |
| Respondent: | MR DENNERLEY |
| File Number: | NCC 1441 of 2019 |
| Judgment of: | Judge Terry |
| Hearing dates: | 25 January 2021, 3 February 2021 & 3 March 2021 |
| Date of Last Submission: | 3 March 2021 |
| Delivered at: | Newcastle |
| Delivered on: | 12 April 2021 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carty |
| Solicitors for the Applicant: | Braye Cragg & Associates |
| Counsel for the Respondent: | Mr Guyder |
| Solicitors for the Respondent: | Lucy Urach & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Williams |
| Solicitors for the Independent Children’s Lawyer: | Foat Roberts Lawyers |
ORDERS
The father shall have sole parental responsibility for the children X born in 2012 and Y born in 2016 (“the children”).
The children shall live with the father.
The children shall spend time with the mother as agreed between the parents and failing agreement in a two week cycle as follows:
a)Week One:
i.From 3.00pm Thursday to 3.00pm Sunday; and
b)Week Two:
ii.From 3.00pm Thursday to 3.00pm Friday.
If the child’s birthday falls on a weekend where the child is spending time with the mother in accordance with Order 3(a) the time with the mother shall be suspended from 3.00pm on 11 September to 12.00pm on 12 September.
The care arrangements herein shall be suspended from 10.00am on 24 December to 5.00pm on 5 January and during such time the children spend time with each of their parents as agreed and failing agreement the children shall spend the following time with the mother.
a)In 2021 and all odd numbered years thereafter:
i.From 10.00am on 25 December 2021 until 10.00am on 26 December 2021.
ii.From 10.00am on 29 December 2021 until 10.00am on 2 January 2022.
b)In 2022 and all even numbered years thereafter:
i.From 10.00am on 24 December 2022 until 10.00am on 25 December 2022;
ii.From 10.00am on 27 December 2022 until 10.00am on 29 December 2022; and
iii.From 10.00am on 2 January 2023 until 5.00pm on 5 January 2023.
The parties shall facilitate the children having reasonable and uninterrupted digital communication with the part the children are not spending time with via “Viber” on each Monday, Wednesday and Saturday evening between 5.00pm and 6.30pm not more than once per day.
The mother shall not consume illicit substances for a period of 24 hours prior to the time that the children are to spend time with the mother pursuant to these orders and she shall not consume alcohol during any time that the mother spends with the children.
The mother is hereby restrained from leaving the children in the sole care of the maternal grandmother.
The mother is hereby restrained from causing or permitting the children to come into contact with the maternal grandmother in the event the maternal grandmother is intoxicated and/or under the influence of illicit substances.
The parties are hereby restrained from discussing these proceedings with the children.
Each party shall keep the other advised of their residential address, email, and mobile and if they have one landline telephone number and shall advise the other party of any change to those details within 7 days of the change occurring.
Each parent may obtain from the child’s school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents and each parent may attend events at the child’s school normally attended by parents.
Each parent is restrained and an injunction is granted restraining them from denigrating the other parent or any member of that parents’ family to or in the presence or hearing of the child or from permitting the child to remain in the presence or hearing of any other person doing so.
IT IS NOTED that publication of this judgment under the pseudonym Allsopp & Dennerley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1441 of 2019
| MS ALLSOPP |
Applicant
And
| MR DENNERLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter concerns a dispute about parenting arrangements for X, 8 and Y, 4.
Currently the children live with their father and spend four nights per fortnight with their mother.
The issues at trial were said to be the time the children should spend with the mother and the allocation of parental responsibility. There is no doubt that the allocation of parental responsibility was an issue, but the mother was proposing that the children spend six nights a fortnight with her. That was put forward as a concession by the mother to her previous proposal that the children live in an equal time arrangement, but it was not really. There is precious little difference between six nights and seven nights.
The orders sought by the mother were that the parties have equal shared parental responsibility and that the children spend time with her from Thursday to Monday in week one and from Wednesday to Friday in week two and that school holidays be shared.
The mother has been diagnosed with borderline personality disorder. She has had long standing problems managing her mental health and her anger which has resulted in compromised parenting and excessive discipline of the children, aggressive behaviour to the father including behaviour which fits within the definition of family violence, and more recently an incident in a school drop off zone involving another parent which resulted in the mother being charged with assault occasioning actual bodily harm.
The mother also has a long history of cannabis use and is currently using cannabis.
The mother said that notwithstanding the incident in the drop off zone, which her counsel referred to as an aberration, her mental health was currently well managed and she was appropriately parenting the children during the time they were spending with her. She said that her cannabis use should not concern the court because she was committed to not using cannabis when the children were with her.
The mother said that the court should have regard to the fact that she was the children’s primary carer prior to the father leaving the home with them in May 2019. She said that she had a different parenting style to the father and that X benefited from the firmer discipline she could offer. She said that the children loved her and enjoyed spending time with her and that it was appropriate that an order be made for them to spend six nights a fortnight with her.
The father proposed a continuation of the four nights per fortnight, which is currently occurring in the form of three nights in one week and one in the other. However he proposed that there be no block holiday time and that this time continue during the school holidays.
The father did not accept that the mother’s mental health was well managed and pointed out that her cannabis use had previously led to two short periods of residential rehabilitation or detox and that it was also a concern.
The father conceded that the mother had not perpetrated any family violence since separation but said the incident in the drop off zone, which took place in the presence of X, was gravely concerning, especially given that the children had their own issues and X had difficulty managing his anger and his emotions.
The father’s proposal did not really fit with the concerns about the mother which were identified during hearing and it is concerning that he said during cross-examination that he was conflict averse and was afraid of the mother’s anger if orders were made for her to spend less time with the children that she was doing at present.
The Independent Children’s Lawyer originally suggested that four nights a fortnight was too much. He was very concerned about the drop-off zone incident, which suggested the mother’s propensity to react violently had not changed. He was also concerned about the problematic relationship which appeared to exist between the mother and X and he questioned whether the mother’s mental health was properly managed. At one point the Independent Children’s Lawyer questioned whether supervised time might not be the preferable outcome.
However at the end of the trial the Independent Children’s Lawyer supported the father’s proposal. Counsel for the Independent Children’s Lawyer said that he could understand if the court felt this was too much time but the father was consenting to it and he had to deal with the situation in the family on an ongoing basis outside of the court system.
The dispute about parental responsibility came down to the mother seeking equal shared parental responsibility and the father seeking sole parental responsibility.
The evidence
The evidence in the case was given by the mother, the father and Dr B.
The mother relied on her trial affidavit and the father relied on his trial affidavit and also a proof of evidence tendered at the commencement of the hearing.
Dr B is a Regulation 7 family consultant and she prepared a family report.
During closing submissions the mother’s counsel submitted that the father had embellished his evidence about the mother’s issues and had attempted to use the fact that she had mental health issues against her.
When I told the mother’s counsel that I was concerned about that submission and asked whether the mother was really suggesting that the father was trying to use her mental health against her, the mother nodded vigorously from the back of the court. I do not accept that this is the case and it is very concerning if the mother believes it to be the case. It suggests that she is far from being at a point where she has insight into the impact of her mental health on her parenting.
Background
The mother and father commenced a relationship in 2006 when they were both living in Town C. They moved to City D in 2007 and thereafter remained there.
They have two children, X who was born in 2012 and Y who was born in 2016. They also had a son E who was born in 2010 and who was stillborn.
The mother was brought up by her mother and never knew her father. She told the family report writer that her mother used drugs and alcohol and engaged in family violence during her childhood, from which I understand her to be saying that she was a victim of family violence from her mother.
The mother got into trouble at school and at the age of 15 she relocated to Town C to live with her maternal grandparents. She had a number of hospitalisations in Town C for mental health issues and she started using drugs when she was 17.
The mother was diagnosed with Borderline Personality Disorder in the early stages of her mental health issues emerging and I think that diagnosis may have been made in Town C.
After a period of time she returned to live with her mother. She told the family report writer that this was due to a desperate desire to protect her sister who was 10 years younger.
At 18 she met the father and commenced a relationship with him.
The mother used cannabis during the relationship and she also suffered from mental health issues. In 2007 she spent a couple of days in a Rehabilitation Centre with a view to dealing with her cannabis use. In 2012, following X’s birth, she was diagnosed with post-traumatic stress disorder.
The father alleged that the mother had ongoing anger management issues and struggled to cope with the children and their behaviour.
In early 2018 the mother commenced therapy with the F Psychology Centre.
In 2018 she was admitted to the G Hospital for cannabis addiction. She attempted suicide in 2018 after discharge from the G Hospital and was readmitted and spent a further two weeks in hospital.
The parties separated in June 2018 but they continued to live under one roof. The mother’s mental health continued to be unstable. The father gave evidence about some manifestations of that, and in February 2019 the mother had a two day admission to the G Hospital following a depressive episode.
In March 2019 the mother was admitted to the G Hospital again after saying she wanted to stab herself in the head.
In April 2019 the mother admitted that she had resumed smoking cannabis. I accept the father’s evidence that in May 2019 he discovered cannabis in the mother’s bedside table and received a concerning call from the mother in which she said that she was having thoughts of dying.
On 12 May 2009, which was Mother’s Day, the father left the home with the children and travelled to Queensland. He left abruptly and did not tell the mother of his plans. He told her he was taking the children to the park but did not return.
The father did ultimately arrange for X to ring the mother but the mother was beside herself about the father leaving with the children and two days later she filed an application seeking urgent parenting orders.
The matter came before the court on 28 May 2019. The father was still in Queensland with the children but he agreed to return to City D and orders were made for the children to live with the father and spend time with the mother on two afternoons each week and from 3.00 pm on Saturday until 3.00 pm on Sunday each alternate weekend.
In August 2019 the mother commenced dialectical behaviour therapy, or DBT in an effort to gain some control over her mental health issues.
It was the mother’s case that she had been the children’s primary care up to the father leaving the home and in the application she filed in this court she sought an order on a final basis that the children live with her. The father alleged risk of harm and proposed that the children live with him and as a result a family report was ordered.
At the family report interviews the father maintained his position that the children should live with him, but the mother told the family consultant that she was seeking equal time.
The matter did not settle after the report was released and when it came before the court on 21 August 2020 it was given a hearing date in January 2021.
On 28 August 2020 the parties agreed to change the interim orders so that the children began spending four nights per fortnight with the mother, being from after school Thursday to 3.00 pm on Sunday in week one and from after school Thursday to before school Friday and in week two and this was the arrangement in place the time of trial.
On 20 November 2020 there was an incident between the mother and another parent in the drop off zone at X’s school and the mother was charged with assault occasioning actual bodily harm and common assault.
At trial in January 2021 the criminal matter had still not been finalised. The mother said that she intended to plead not guilty but there was no suggestion the trial should be adjourned until the criminal matter was finalised.
All the mother said about that incident in her affidavit was that it occurred at school, she had been charged, and she attending pleading not guilty. She said it occurred between herself and another parent and she was defending herself when the other parent became aggressive and violent to her.
The mother was given a certificate under the Evidence Act so that she could give evidence in this court about what had happened without fear of it being used against her.
The mother said that she drove into the drop off zone and the other parent would not move her car forward. She said that the other parent got out of her car and that she then got out of her car. She alleged the other parent forced her backwards until she kicked out to stop this happening.
The police alleged that the mother punched the other parent in a flurry of blows and kicked her and that she suffered some injuries. The mother admitted in the witness box that there had been some kicking, and X reported to a teacher later that day that he had seen the mother punching the other parent.
I cannot make a finding about exactly what happened but regardless of whether the mother is ultimately acquitted of the criminal charge or not it was a very serious incident.
The elements of a criminal charge have to be proved beyond reasonable doubt. That burden of proof does not apply in this Court and I am not concerned about whether the elements of a criminal charge have been made out. The important thing for this court is that the incident involved the mother getting out of her car when she should not have done so; she conceded that herself in the witness box, and there was a physical altercation with the other parent which X witnessed.
The matter was originally listed for trial for one day in January 2021. It did not finish and it was adjourned to 3 February 2021 to take the family consultant’s evidence and then to 3 March 2021 for submissions.
Between the family consultant’s evidence being taken and the matter coming back before me on 3 March 2021 an interim ADVO was made against the father for the mother’s protection. A copy of the ADVO was tendered but no party sought to reopen their case so that evidence could be given about what had caused that ADVO to issue and on 3 March 2021 I took submissions and reserved judgment and I am now handing down the reasons.
X & Y’s best interests
Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s.60CC (2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine their best interests.
Section 60CC (2) contains the primary considerations and section 60CC (3) the additional considerations and as I frequently do I am going to start with the additional considerations.
I am also going to start by ruling out some that do not help me.
Practical difficulty and expense does not help me. The parents currently live in the same suburb in City D and although the father wants to move a bit further away from the mother he is not intending to move much further away.
The extent to which each party has taken or failed to take the opportunity to spend time with the children, communicate with them or make decisions about them is not relevant in the factual matrix of this case.
I must have regard to the financial support of the children. The father sought and obtained an exemption from applying for a child support assessment and that means that he is primarily financially supporting the children. Given the aggression the mother can sometimes display I can understand why he sought that exemption but it was his choice and the issue of who is financially supporting the children does not assist me to determine the matter.
Making findings about the attitude of the parents to the duties and responsibilities of parenthood is not going to assist me.
The first relevant consideration is the views of the children and the weight to be given to their views.
The family report writer interviewed X and said as follows:
X views his relationship with his father as being extremely important to him. He views his father as being his protector. X indicated a clear preference to remain living with his father, however, the importance of him maintaining a relationship with his mother was also apparent.[1]
[1] Family Report paragraph 115
Y was not interviewed by the family report writer because of her age so I have no independent evidence about her views.
The mother said as follows in her affidavit:
Y will often say to me words to the effect of: “I have this much time with you and this much time with daddy.”’ Y then shows with her hands two varying lengths of space, one being shorter for the time she has with me and one being longer for the time she has with Mr Dennerley. Y then says words to the effect of: “I wish I had this much time with you and this much time with daddy”. Y then demonstrates two lengths of space between her hands similar in length.[2]
[2] Mother’s affidavit paragraph 55
However even assuming that is totally accurate I cannot place weight on it. Y is four years old. Children can say things in the moment because they miss a parent and then they can say or think something entirely different five minutes later. I cannot place weight on what the mother put in her affidavit as indicating that Y would like to spend more time with the mother than she is at the moment or even that she has a view about parenting arrangements.
I must consider the nature of the relationship of the children with each of their parents and any other relevant person.
The father is the children’s primary attachment figure a warm interaction between the father and the children was observed by the family consultant who said as follows:
When the children returned to the father, they were excited and enthusiastic. They were both smiling and laughing and talking with confidence. X told the father in detail about everything the children had been doing since they left the father. They cuddled the father and sat down next to him. X needed the bathroom and asked if his father would take him. The father responded warmly to this request and the father and both children went to the bathroom.
When they returned, the children engaged with the toys that were available in the room and they actively engaged the father in their play. The father responded appropriately and was child focused. The interaction flowed easily and the father appeared well attuned to the children’s needs. He was able to divide his attention equally between the two children and there were no concerns noted. It was clear that the children and father have a loving and trusting relationship with the father.[3]
[3] Family Report paragraphs 119 & 120
The children also had a warm interaction with the mother and the family consultant said as follows:
The children were then observed interacting with the mother. The children had asked many times throughout the day if the mother was present, and they indicated their desire to have some time with her. When they finally saw the mother, they both ran to her excitedly and threw themselves into her arms. The mother responded appropriately and cuddled the children and greeted the children with warmth.
The children and mother then sat down on the couch in the observation room. They chatted with ease, the interaction flowed naturally and the mother remained child focussed. There were no concerns noted and the children appeared to have a well-developed relationship with the mother that is important to them. The formal observations between the children and the mother, and the children and the father presented very similarly.[4]
[4] Family Report paragraphs 121 & 122
However I am satisfied that the father is the children’s primary attachment figure.
The children are a valued part of an extended family. They have paternal grandparents and maternal great grandparents in Town C who they see during holidays and the mother has a sister in Sydney who visits from time to time.
At the time of trial the maternal grandmother was living in City D. She is a person of concern. There is an order is in place prohibiting the mother leaving the children alone with her and at the end of the hearing the mother agreed to that continuing on a final basis.
The father said that things the children had said suggested to him that that this order was not always complied with. Given what the mother experienced at her mother’s hands it is to be hoped that the mother is extremely vigilant about not placing the children at risk in respect of the maternal grandmother.
I must consider the likely effect of any change in the children’s circumstances.
This is a relevant consideration but I am not going to discuss it here because as with so many cases it needs to be discussed after findings are made about all of the section 60CC(2) and (3) matters. It will be woven into the conclusion.
I must consider the capacity of each parent to provide for the needs of the children including their intellectual and emotional needs.
The mother is living in rented premises in Suburb H and has appropriate accommodation for the children. She is working as a cleaner and as a factory worker at night and she works when she does not have the children.
From that perspective there is nothing concerning about the mother’s capacity to provide for the children.
In the father’s affidavit, and I think the mother’s as well and it may also be in the family report, there was a reference to the mother being in a relationship with a man called Mr J. Some of the information the father provided raised a concern about him but this was not referred to during submissions.
So far so good but there are concerns about the mother’s parenting capacity and one of them is her drug use.
The mother said that she commenced using cannabis when she was 15 and was using it daily by the time she was 17. She said that this continued until 2009 when she went into detox for a few weeks and ceased using it.
She resumed using it in 2017 and her use quickly escalated to daily. That continued until May 2018 when she again did some residential rehabilitation.
The mother used after leaving residential rehabilitation but there does seem to have been a period when she was not using cannabis. However her evidence about her use of cannabis since the proceedings commenced was all over the place.
The mother told the family consultant that she had used cannabis once or minimally since she was last in detox. At a CDC event she said she used it every three weeks. She produced some clean drug tests during the proceedings but in her trial affidavit she said she was currently using cannabis although she did not use it regularly.
The mother’s counsel submitted that the Court should not be concerned about this and should accept that the mother would comply with a restraint not to use cannabis when the children were with her. However given the mother’s history and the fact that she required treatment on two occasions for cannabis addiction, I have reservations about her ability to do that. For a lengthy period of her life she smoked daily.
Cannabis use has an impact on people’s ability to care for children. It can affect their ability to supervise the children. It can mean that they are not focused on the children. It can mean that they cannot drive if the children need emergency medical treatment. It is undesirable for people to be using cannabis when children are in their care.
Given the mother’s history and the fact that she has not been able to cease cannabis use even while these proceedings are on foot, I am concerned that the children could be exposed to cannabis use if they spend time with the mother, and even if they are asleep I consider them exposed to cannabis use because the mother’s capacity to parent them is then compromised, and the longer they spend with her the more difficult it may be for the mother not to use cannabis when they are with her.
Another concern is the mother’s mental health and it is the most significant issue in the case.
The mother was diagnosed with borderline personality disorder after she moved to Town C at the age of 15 and she had multiple hospital admissions for suicidal and self-harming behaviour when she lived in Town C.
She has had less frequent hospital admissions for her mental health since then, in fact there may have only been one or two, but she has had ongoing intermittent thoughts of self-harm and suicide.
The mother’s mental health issues impacted on her parenting capacity during the relationship.
The family consultant said that when she asked the mother about this the mother appeared to take offence to the question and became slightly defensive and that she oscillated between stating that she wanted to be honest, noting assertively and defensively that she wasn’t going to lie, and then minimising the impact of the experiences she described.
Even on the mother’s evidence her mental health issues impacted on her parenting capacity. The family consultant said as follows:
The mother reported that there have been many times when she has experienced limited tolerance, become frustrated too easily, and was too quick to anger with regards to the father and children. She stated that there were times when she has yelled and sworn and said “for f**ks sake X go to your room”. However, she noted that she has never called the children names, or sworn directly at them. She indicated that her swearing has occurred only when indicating her own frustration. The mother stated that X uses bad language and constantly swears and she stated that he has not only learnt that from her, indicating that the father swears in front of the children also.
The mother reported that she has smacked X in the past, noting that there were possibly times when she has smacked X far too hard, and also noting that all parents smack their children, even if it’s supposedly wrong. The mother noted that she has only ever smacked using a bare hand to the child’s bottom. She stated that she has never assaulted or abused her children.
The mother stated that she has experienced bad days in the past, when she has found it difficult to get out of bed, however on these days she would lie on the couch and the children would be with her watching TV. She stated that this is the worst the children have ever experienced of her mental health and it was not so bad.[5]
[5] Family Report paragraphs 58, 60 & 61
The family consultant went through the subpoena material and carefully summarised it and the accuracy of her summary of it in her report was not disputed. She said as follows:
There are notes that refer to the mother’s admissions that she struggled to tolerate the babies crying when they were young, that she found having a toddler to be emotionally demanding, that she felt hopeless as a mother, and that at times she has experienced a strong impulse to harm the children, also noting that she never would. She noted that there were times when she had to leave a child on a bed, shut the door and leave the house until she was able to calm, she noted that there were times when she handled the children roughly and shouted at them to shut up. K Families were involved in the time with assisting the mother and they provided her with strategies to cope. The notes reflect the consistent and unrelenting emotional struggles that the mother was experiencing at the time, the notes indicate that it continued across years and included thoughts of self-harm and suicide. The notes also indicate that the mother reported that the father was supportive, that there was no family violence, and that she had at times treated him poorly and felt ashamed. There is also a reference to an occasion when the mother smashed a microwave when her emotions were overwhelming.[6]
[6] Family Report paragraph 65
The father and the family consultant both referred to the impact on X of what happened during the relationship and the family consultant spoke to X and said this:
X was able to articulate a range of family experiences both pre and post the parent’s separation. He also reported age-appropriate positive and negative experiences with both parents. He reported loving both parents and wanting to have time with them both. He noted he was enjoying his time with his mother.[7]
[7] Family Report paragraph 113
The family consultant said that it was clear to her that X had been exposed to early inconsistent care, significant verbal abuse and some physical abuse perpetrated by the mother and that this had caused X significant fear. She said that X was able to describe these experiences in an age appropriate way using age appropriate language.
The family report writer is a clinical psychologist and she has the expertise to make comments about borderline personality disorder. She said as follows:
There is no disputing that the mother has historically experienced significant mental health issues and has a diagnosis of borderline personality disorder (BPD). This disorder is characterised by a pattern of instability in interpersonal relationships, challenges managing emotions, tolerating distress, regulating behaviours and impulsivity. The parents agree that these are the symptoms the mother has experienced throughout her life and they agree that these symptoms have negatively impacted the children and the parents’ relationship. They disagree on the extent of the impact.
Subpoenaed information also reflects some of the challenges the mother has experienced when caring for the children and it is clear that the mother has experienced difficulty regulating her emotions in the presence of the children, difficulty providing consistency in care, and difficulty remaining appropriately attuned to the children’s needs. There is no doubt that the mother loves her children and that the children value their relationship with her. However, it is the view of the family consultant that the mental health difficulties the mother has experienced have likely had a far greater impact on the children than the mother is possibly aware of.
During the family assessment interview, the mother provided examples of her behaviours that reflected some of the father’s allegations, and subpoenaed records reflect conversations the mother has had with professional services where she has also indicated that some of these incidents have occurred. The mother concedes to being quick to anger, calling the father names and swearing at him. She also admits to swearing at the children, treating them roughly and hitting X too hard on occasion. She admits a preference to degrade men for sexual gratification, and subpoenaed notes indicate that she admitted to treating the father badly and feeling ashamed of this.[8]
[8] Family Report paragraphs 128, 129 & 132
There is no doubt that historically the mother’s mental health has impacted on her parenting of the children in a variety of ways. The mother did not accept at trial however that her mental health issues justified limiting her time with the children. She felt that the father was playing on her issues to gain an advantage.
The mother felt that her behaviour during the relationship had been affected by the fact that she was not taking medication or having counselling. She said that she was currently on medication and had been engaged in counselling, including DBT therapy, since the relationship ended. She gave evidence in her affidavit about recently attending some psychotherapy, although at trial she said she was not currently attending because she could not afford it.
During cross-examination of the father and in submissions, the mother’s counsel tried to create the impression that the parents had similar problems. They had both physically disciplined the children; the father had smacked them as well. The father had suffered depression and anxiety and it was not just the mother who had mental health issues. She seemed to be submitting that as a result the court should not be too critical of the mother for what happened during the relationship.
It does not help the mother that these excuses were made. I do not accept that both parents had similar issues or behaved in a similar fashion. The mother’s mental health had a significant impact on her parenting of the children during the relationship, and there is reason to be concerned that her mental health is not currently as stable or as well managed as she would like the court to believe.
The submission by the mother’s counsel that the November 2020 incident was an aberration also suggests, because it was clear from the mother’s engagement in her counsel’s submissions that it is also her belief, a lack of insight by the mother into the impact of her behaviour on the children and the implications it has for the case.
I do not accept that the mother’s behaviour in November 2020 was aberrant behaviour. It was a different example of the mother losing control and being aggressive and violent, the sort of behaviour which occurred during the relationship and was directed at the father and to a small degree at the children.
It is regrettable that the mother’s counsel labelled the mother’s behaviour in November 2020 aberrant behaviour and it is difficult to understand why the mother did not immediately seek assistance after this incident.
There is merit in the submission by the father’s counsel that the evidence suggests that the mother’s mental health is not well-managed at the moment. The mother’s lack of acknowledgment of the severe impact her mental health has had and can have on her parenting capacity, and the fact that she is not undergoing any therapy at present means that I am significantly concerned about her spending extensive time with the children.
The father is living in a rental property in Suburb H. He has not re-partnered. If I understand the evidence correctly, at the time of trial he was working part time as a customer service representative during school hours, and Y was attending day care as needed.
The father does not have any issues with drug use. He said that he had used cannabis about four times in his life and did not like it, and the mother endorsed that. He has no issues with alcohol consumption and I do not accept that the mild depression or anxiety that he has experienced has had any impact on his parenting capacity.
I found the father an empathic parent and the family report writer said this:
However, the father also noted that he has participated in a lot of parenting courses since the parents’ separation and he understands now that the children have experienced some early childhood trauma and they need patience and love while they recover from this. The father stated that he is doing his absolute best to try and understand the children’s needs and meet them appropriately.[9]
[9] Family Report paragraph 73
The mother told the family report writer that she felt the father was too soft with X and let him do what he wanted. However the father gave some impressive evidence in the witness box about how he coped with issues with X when they arose. He said that he tried to let X feel that he had been heard but be calm and patient with him. The family consultant said as follows:
The family consultant asked the father what courses he has participated in, and the father replied that he has completed Separating Dads with the City D Family Services. He stated that he learnt a great deal from this course in particular how much love and empathy the children need. The father stated that he learnt that the children need to heal through connection and not overly strict discipline. He stated that he is aware that there is a fine line between these two strategies and that he has to provide both, however he noted that the children have been traumatised and they need love and sympathy and patience and understanding. The father stated that he doesn’t agree with the things that X says, referring to inappropriate language. However, the father reported that instead of yelling at X or punishing him, he has learnt to ask him how he is feeling and encourage him to express his emotions appropriately. The father stated that he is trying to be more attuned to X’s emotions rather than responding to him with anger. The father noted that he has also participated in Go For Fun which is teaching healthy eating and exercise for children.[10]
[10] Family Report paragraph 74
The father is a good parent with a good parenting capacity. He has not faced the challenges the mother has in his upbringing and I have sympathy for the mother, but it does not alter the fact that I have concerns about her parenting capacity but I do not have concerns about the father’s parenting capacity. The children are being very well looked after by the father.
I must consider the children’s maturity, sex and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant.
That is a relevant consideration because the children have their own issues.
The mother said that X had experienced behavioural difficulties from a young age. She said that he had difficulty sleeping, was defiant and oppositional and was quick to anger and quick to tears.
The father did not dispute this and said that there had been occasions since separation when X had punched, kicked and attempted to injure him and had sworn at him and called him names. He said that X had held a knife to his own throat claiming he was going to kill himself and that he would yell and cry and lash out if he was denied something he wanted, such as his PlayStation.
The father believes that the mother has been unkind to X and inconsistent in demonstrating love for him and that this may be behind some of the problems and the family consultant seemed to think that may be valid. She said as follows:
Finally, the children presented as young people who were experiencing difficulty regulating their emotions and behaviours, and X provided information that indicated he has been exposed to maternal behaviours that have caused him fear and distress. Based on the information that has informed this assessment, it appears to the family consultant that the children have been exposed to inadequate maternal care and verbal abuse and that this has exposed the children to trauma which has resulted in the behavioural issues reported by the father, and observed during the family assessment interviews.[11]
[11] Paragraph 133 of the Family Report.
X has anger management issues and issues with regulating his emotions. He had some involvement with CAMHS (Child & Adolescent Mental Health Service) in 2019 and 2020 and efforts are being made to help him.
It was particularly damaging for X to be exposed to the November 2020 incident, and the different approaches the parents take to dealing with his behaviour does not help him either.
The father as noted above tries to be empathic. The mother said that X needed boundaries and discipline but there was an incident before Christmas 2020 when she attempted to impose boundaries and exert discipline and X reacted adversely to it Then in January 2021 he did not want to go to the mother at changeover when he was due to spend some time with her.
Whether the mother’s approach is entirely helpful to X or whether the father’s approach of empathy and calmness is the better approach has to be open to question, and in any event the fact that the parents have such different approaches is a relevant consideration in determining the amount of time X should be spending with each of them and whether something approaching shared care would be a good outcome for him.
Y has not been engaged with a psychologist or psychiatrist but the father expressed some concerns about her in his trial affidavit. He said that she occasionally said that she was going to kill someone or kill herself when she was upset or frustrated. He said she had hit a few friends at school. He said he would like to have Y assessed by a GP to see if there were any age appropriate therapies available to assist her to understand her emotions better.
The father is doing a good and insightful job managing the children’s behavioural issues but they are clearly going to require ongoing support.
I must consider any family violence involving the children or a member of the children’s family.
The father alleged the mother had perpetrated emotional and physical violence throughout the relationship in the form of name calling, swearing, criticising and belittling him in front of the children, threatening suicide and self-harm (which can be a form of family violence) and threatening to harm the children. He said that he was always on high alert around the mother.
The family consultant said as follows:
The father stated that if the children cried in the night, he would quickly attend to them in the hope that he could settle them before they woke the mother, knowing that she would respond with anger. The father recalled one incident when one of the children woke up crying at around 3.00am and the father attended to the child, however the mother woke. The father stated that while he was trying to sooth and quiet the baby the mother started ranting and raving and yelling at the father. The father stated that she said to the father “I’d f**ken hit you, but if I did you would call the police you dog”. The father stated that she was right he would have called the police. The father stated that the mother’s yelling made the child cry more and the situation continued to escalate under the mother eventually left and calmed down. The father stated that this sort of scenario occurred frequently.[12]
[12] Family Report paragraph 85.
I am satisfied that the mother has perpetrated family violence against the father on various occasions as it is defined in section 4AB of the Family Law Act and the relevance of it is the impact it has had and continues to have on the father. The family consultant said this:
[The father] stated that it is embarrassing to reflect on how often she used to tell the father that there was something wrong with him and that he was not normal. The father stated that there were times when he genuinely questioned himself. He stated to the family consultant that he frequently asked himself, if the issues between the parents were actually all his fault? He stated that he never responded to the mother’s taunts because he detests conflict, it makes him very anxious and so he would never yell back at the mother or argue with her. He stated that he was always trying to keep the peace. He noted that he was also always attempting to protect the children from being exposed to the mother’s rants and aggression. He stated that as a result he was easily manipulated.[13]
[13] Family Report paragraph 102.
I accept that to be the case and it has implications for a number of things, including the amount of time the children spend with the mother and whether the parties can share parental responsibility.
I must consider whether the court should make the orders that are least likely to lead to further proceedings.
Neither of the options presented to the court, which are the children spending four nights with the mother or six nights with the mother, is to be preferred because it is least likely to lead to further proceedings. Neither outcome may head off further proceedings.
If the mother’s mental health is not well managed going forward and if she resumes using cannabis more extensively, then regardless of the amount of time which is ordered there is a considerable risk that there could be rather incidents and further problems which mean that the matter returns to court.
I must consider any other relevant matter.
The only other relevant matter to note is that earlier in the proceedings, the father was talking about relocating to Town C. He is not wanting to do that anymore. He does want to put a bit more space between himself and the mother, but he said he did not intend, at present, to change the children’s school.
I then have to return to the primary considerations and the first of those is the benefit to the children of having a meaningful relationship with both of their parents.
The parents are different. The children love them both. They will benefit from having a relationship with both parents which is significant, important, and valuable to them.[14]
[14] Mazorski & Albright (2008) 37 FamLR 518
Neither parent wants to stop the children having that kind of relationship if they can. The father’s proposal for less rather than more time is not due to a wish to cut the mother out of the children’s life; it is due to risk of harm concerns, and the mother can have a meaningful relationship with the children whether she spends four nights or six nights with them and whether or not she has holiday time with them.
If the mother does not have a meaningful relationship with the children it will not be because of the amount of time the court orders or because of the father’s attitude. The father is insightful about the need for the children to have a relationship with the mother. The family report writer said as follows:
The father reflected on the children and their needs. He stated that they need to be protected from the mother’s anger and aggression however they also need to have a relationship with her. The father stated that if his proposal is accepted, then the children will live with him for the majority of the time and so hopefully this will limit the opportunities for the mother to become frustrated with them. He noted that ensuring they have consistent time with her over the weekend and involving her in their school and extracurricular activities will also nurture their relationship with her.[15]
[15] Paragraph 83 of the Family Report.
The second primary consideration is the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and that consideration takes primacy over the benefit to the children of a having a meaningful relationship with both of their parents.
The mother did not suggest that the children were at any risk of harm in the father’s care, and I am satisfied that is the case. However the father has concerns about the children in the mother’s care.
He is concerned that she hit the children too hard on occasions and criticised and belittled them during the relationship. He also alleged the mother had slapped X, across the face. My recollection is that he said that he did not actually see that, and I am not going to find that it occurred but the mother has admitted to previous harsh discipline and to hitting the children too hard.
The father told the family report writer that the mother had threatened to kill the children. He is not antagonistic to the mother, indeed he is somewhat placatory to her, and I do not consider that he made that up. However it was not his case that such a statement by the mother meant that the children were at catastrophic risk of harm in her care. It seemed to be his case that this came more from an unmanaged period of mental health or from despair or upset by the mother. However he is concerned about the criticism, belittling and harsh discipline and I accept that all those things have occurred.
X came home after a visit to the mother at Christmas and alleged that the mother had slapped him in the face. The mother vigorously denied that this had occurred. I cannot make a finding on the balance of probabilities that it did happen. It was not in dispute that the mother’s management of X’s behaviour on that occasion caused him to become extremely upset and it could be that he said something to his father which was exaggerated or untrue. However what has happened to the children historically is very concerning.
Hitting children too hard is abuse, and belittling and criticising them is abuse, and the father is concerned that some of those things could happen in the future.
The mother’s counsel said that any risk of harm could be ameliorated by an order restraining the mother from smacking the children. She submitted that the mother’s mental health was properly managed at the moment and that the risk of her belittling or criticising the children and smacking them too hard was not a current risk.
I have some reservations about that. The mother’s mental health is not necessarily well-managed at the moment and the nature of her mental health condition means that she can lose control. She often regrets it afterward, that is clear from the material, but she loses control. She did so to the father and the children on numerous occasions during the relationship and she did so in the drop-off zone as recently as 20 November 2020. There is an ongoing risk of the children being excessively physically disciplined by the mother if her mental health declines or is in a particular state at a particular time.
There is also a risk of the children being exposed to psychological harm from being belittled and criticised or from being exposed to an incident such as the mother’s behaviour in the drop-off zone, and also from things such as the mother being rejecting one minute and loving the next.
The children are at some risk of harm in the mother’s care and they are also at risk of compromised parenting from all of those things.
It is open to question whether limiting the mother’s time to four nights a fortnight with no holiday time, rather than making an order for six nights and holiday time, sufficiently addresses that risk, and the father and the Independent Children’s Lawyer’s counsel did not ask me to do anything more than that. It is one of the dilemmas in the case.
Parental Responsibility
Pursuant to section 61DA of the Family Law Act I am required to apply a presumption that the parents should have equal shared parental responsibility for the children, absent a finding that one of the parents has committed acts of family violence or abused the children.
There has been family violence and the presumption does not apply. However I can still make an order for equal shared parental responsibility and the mother’s counsel quite strongly, I might even say passionately, urged me to do so.
The mother conceded in her affidavit that communication between her and the father was not good, but she said the father had set up an email address and she had tried to use it to communicate. The mother’s counsel stressed that there had been some occasions in the past, including an occasion when Y had been hospitalised, when the parents had been able to have a civil discussion and reach agreement about things. She strongly urged me not to cut the mother out of the loop in terms of decision-making.
The mother’s counsel submitted that the mother had been the children’s primary carer historically and that it would benefit the children to have two parents involved in decision making about them.
However for a number of reasons I am satisfied that it would not be in the children’s best interests for me to make an order for equal shared parental responsibility.
The parents have a poor relationship. It is poor more often than not, and the fact that there was an application for an ADVO between the date the family report writer was cross-examined and the date of final submissions is ample demonstration that it continues to be poor.
I do not know what happened on that occasion, but in the past the mother has subjected the father to family violence and aggressive behaviour and he has tended to back down in the face of her aggression.
The father has better insight into the children’s needs. He is empathic and is likely to make better choices for the children.
The mother is not insightful about the children’s needs. She also has a fluctuating mental health condition and has had two brief hospitalisations arising out of her cannabis use and she continues to use cannabis. She may not always be in a good place to make decisions.
If a decision needed to be made and the mother’s aggression resulted in the father backing down and allowing himself to be overruled because he was reluctant to engage in conflict with the mother or make her angry, or resulted in him not approaching her at all, that would be a bad outcome for the children, given that he has more insight and is more empathic to the children and is likely to make better choices.
There could also be occasions when the mother is simply not in a good place to make decisions when they need to be made.
The children have ongoing issues and I am satisfied that it is appropriate that the father has sole parental responsibility for them.
The mother’s counsel urged the court, if it came to that position, to at least make an order for a consultation provision, so that before making a decision the father had to consult with the mother and tell her what was needed and what he thought was a good solution and give her a chance to have a say about the decision that was required.
That would throw up exactly the same problems that an order for equal shared parental responsibility would throw up. It is highly likely to lead to conflict and stress for the father and it may result in a poor outcome for the children if he bowed to unreasonable pressure from the mother.
I am not going to make an order for consultation. I will however make a notice provision.
The family consultant’s recommendations
The family consultant said as follows about the proposal for equal time which the mother had on the table at the time of the report interviews:
The second issue disputed is whether or not the children will benefit from an equal shared care arrangement and the family consultant is of the view that this would not be the best outcome for this family. In general, equal shared care arrangements can be difficult for children as they need predictability and consistency, and this is simply not possible when parents do not effectively communicate and co-operate. As young children in a shared care arrangement, the children would have to manage and negotiate the parental conflict, inconsistent parenting arrangements and strategies, and a number of physical environments. This is likely to be physically and emotionally draining, particularly when their coping resources are either not well enough developed to manage such an arrangement or when they are already stretched with meeting normal developmental demands. The parents agree that they communicate and parent very differently, with the mother taking a firmer more assertive and authoritative approach and the father emphasising a need to provide empathy and emotional attunement. These highly varied parenting styles will likely be difficult for the children to negotiate.
An equal shared care arrangement also requires a heightened need for routine parental communication, co-operation and flexibility due to school, sporting and social commitments which arise constantly in a shared care arrangement, as opposed to an every-second weekend arrangement. While the relationship between the mother and the father appears to have improved since separation, they both agree that in the past their relationship has been turbulent and characterised by conflict. Further the father concedes to giving in to arrangements to avoid conflict and that one of his ongoing challenges is in effectively managing the mother’s more assertive/confrontational communication style. The mother also concedes that she is more emotional and expressive and the father is more avoidant. It is likely that these differences in communication will lead to ongoing issues for the children long term, as decisions made may not be in the children’s best interest, rather may be based on who wins the argument. It is also likely that an arrangement that places the parents in a position where they are constantly required to negotiate will further undermine their parenting capacity as their capacity to resolve their differences is limited and will likely cause the parents emotional and psychological stress.
Finally, these children and in particular X, have already been exposed to early childhood instability and this has resulted in some behavioural and emotional difficulties for him. Given their current vulnerability the children require more routine, stability, and attuned parenting than other children their age. It is the view of the family consultant that it would be an extremely poor outcome for the children if they were provided with an arrangement that exposed them to ongoing change and inconsistency.[16]
[16] Family Report paragraphs 134-136.
The family consultant did not support equal time and the mother’s proposal at trial is not much below that and she did not support equal time even before the drop-off zone incident and that incident adds to concern about the children spending extensive time with the mother.
The family consultant suggested alternate weekends and one overnight in the off-week. That, on the face of it, would support an order for three nights a week, not four although that would depend, I suppose, on whether the mother had Sunday overnight to Monday, so at best she was supporting four nights a fortnight.
However the family report is only one piece of the evidence and I have to put all the evidence together and make a decision about what I am going to do.
Conclusion
Aside from the dispute about parental responsibility, this case was essentially about the amount of time the children should spend with each of their parents.
Sometimes when the court hears such a matter and tells the parents, because they have not been able to decide themselves (not that the court enjoys being a dictator, but sometimes parents cannot agree) what the outcome is going to be, matters settle down, parents abide by the orders and all is well for the children.
I have a considerable concern that this will not be the case here, because the problem in this case is not the number of nights the children spend with the mother but the mother’s mental health and cannabis use, the impact her mental health issues have had on the children and the father to date and the impact that may have on the children and the father in the future.
The mother’s mental health issues have adversely impacted on the children. She has been intermittently verbally, and occasionally physically, abusive to them and to X in particular. X has experienced a confusing mix of love and rejection. The children have been repeatedly exposed to the mother being verbally and sometimes physically abusive to the father.
The mother has had some treatment for her mental health in the past two years, but she has experienced fluctuating mental health issues for the past 16 years. She has also had a couple of stints in hospital to do with cannabis addiction, and she has returned to using cannabis, although she does not currently see it as a problem.
The mother was charged with assault occasioning actual bodily harm only four months ago, and whether she is found guilty or acquitted of a criminal charge, there is no doubt she got out of her car in a school drop-off zone when there was no need for her to do so and became involved in a physical fight with another parent when X was in the car.
X had an altercation with the mother in December 2020, and whether she slapped him at that time as he reported to the father does not matter. There were issues between the mother and X during that visit and then in January 2021 X did not want to go with the mother when the time came for him to do so. The parents agreed to let him stay with the father and he went to the mother the next day.
The mother still has the same mental health issues which have impacted adversely on the children throughout their lives and I share the concern originally expressed by the Independent Children’s Lawyer that there is considerable risk of the children suffering psychological harm at the very least if they spend unsupervised time with the mother, and that concern is ramped up by the fact that she has resumed using cannabis.
The father does not embrace the idea that the mother should spend less time with the children than she is at present or that her time should be supervised. At trial he proposed that the children spend four days a fortnight with her and during submissions the Independent Children’s Lawyer reluctantly endorsed that.
I have considerable reservations about whether I am doing the right thing ordering that amount of time. I have considerable concern that this matter will be back in Court in the not too distant future because there are continuing problems with X being willing to spend time with the mother, further incidents involving the mother which means the father feels he cannot comply with the orders or because some other issue arise which I cannot foresee.
The children love their mother and the father does not want to stop them having a relationship with her, but if the children continue to be exposed to compromised parenting or to the mother acting out angrily to others, then their childhood is going to be blighted in the same way the mother’s was.
The mother’s counsel was passionate during submissions about the mother’s desire to be involved in the children’s lives and about the unfairness of the mother being sidelined about decision-making and about the amount of time she spent with the children. It was suggested during submissions, and the mother seems to believe it, that she was being unfairly discriminated against because she had mental health issues. However this case is not about the mother. It is about the children. This Court does not make orders to protect or appease parents.
The mother was poorly parented. She has had significant issues as a result and I am sympathetic to her, but I have to do the best I can for X and Y going forward.
I could not possibly consider making an order for the children to spend six nights per fortnight with the mother. Even if there had not been the November 2020 incident, both parents described conflict in the home before separation and the mother being short with the father. The parents have a poor relationship. To add to all that, the police have recently applied for an ADVO against the father arising out of an alleged incident with the mother.
This is not a case where equal time or alternatively six nights per fortnight would be in the children’s best interests and in addition as the family report writer pointed out, different parenting styles can make it hard for children to transition between two homes and these parents certainly have that.
There are many reasons why it is better for the children to live primarily with the father. He does not have drug and alcohol issues or concerning mental health issues. No issues were raised about his parenting of the children historically except that the mother said he was a bit soft with X. Four nights is all I would be prepared to order and I am only prepared to do that because the father proposed it and the Independent Children’s Lawyer supported it.
The father proposed that there be no specific order for holiday time. The Independent Children’s Lawyer supported that and I am satisfied that is the appropriate arrangement. This is not a case in which I would be prepared to order that the children spend a week or even longer than a week with the mother during the school holidays.
I have considerable concern about whether I am doing the right thing for the children as it is and if the matter comes back to Court, I strongly urge the Court not be deterred by the Rule in Rice & Asplund[17] and to ensure that if matters need to be considered afresh, they are.
[17] Rice & Asplund (1979) FLC 90-725.
I can hear the mother’s distress at me making these orders and I am sure she feels distressed about some of the things I have said which no doubt have seemed rather blunt. However the last thing that anyone wants is for these children to grow up suffering the same disadvantages and problems that the mother has because of the way she was parented. I cannot make orders which might result in that happening, sympathetic as I am to the mother although she may not believe that.
I certify that the preceding one hundred and eighty three (183) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 2 June 2021
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Injunction
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