Ames & Caddy
[2023] FedCFamC1F 133
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ames & Caddy [2023] FedCFamC1F 133
File number(s): BRC 2566 of 2022 Judgment of: MCGUIRE J Date of judgment: 9 March 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by mother to review a decision of a Senior Judicial Registrar’s in respect of interim parenting arrangements where orders were made that the children live with the father – where the children had lived with the mother since the parents’ separation in 2017 – where orders had been made by consent in September 2020 confirming the children to live primarily with the mother and spend weekend and holiday time with the father – Hearing de novo – consideration of s60CC factors – order for children to remain living with the mother confirming the consent orders of September 2020 – order for prioritised trial Legislation: Family Law Act 1975 (Cth) ss 60B and 60CC Cases cited: Eaby & Speelman (2015) FLC–643; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93–286; [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13
Banks & Banks (2023) FLC93-637
Division: Division 1 First Instance Number of paragraphs: 83 Date of hearing: 7 March 2023 Place: Hobart Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in Person Counsel for the Respondent: Ms Berck Solicitor for the Independent Children's Lawyer: Berck Solicitors ORDERS
BRC 2566 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AMES
Applicant
AND: MS CADDY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
9 March 2023
THE COURT ORDERS THAT:
1.Orders 2, 3, 4, 5 and 6 of the Orders made on 2 February 2023 be discharged.
2.The Orders of the 9 September 2020 be reinstated and remain in full force and effect from this day.
3.These orders permit the mother to collect the children X born 2013 (age 10 years) (“X”) and Y born 2014 (aged eight years) (“Y”) from their school this day or otherwise as arranged between the parties and the Independent Children’s Lawyer.
4.The mother be permitted to provide a copy of these orders to the Principal of the children’s school.
5.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.
6.There be liberty to both parents, Mr Ames and Ms Caddy, to apply on short notice to McGuire J or any other Judicial Officer of this Court in respect of the report/assessments of the parents.
7.The matter remains listed for trial directions before a Registrar of this Court on 15 March 2023 with the matter to be allocated a trial date with such priority as the Court can offer.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Ames & Caddy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE
APPLICATIONS
This is an Application for Review filed by the mother, Ms Caddy, following an interim parenting determination of a Senior Judicial Registrar (“SJR”) made 2 February 2023 where orders were made inter alia for the two children, X born 2013 (age 10 years) (“X”) and Y born 2014 (aged eight years) (“Y”), among 15 various orders including a referral to the Evatt List, as follows:
(1)That the children live with the father, Mr Ames; and
(2)That the mother be restrained from contacting, or attempting to contact, or asking someone else to contact the children by any means including (but not limited to) electronic, written, verbal, phone, text message, in-person, and social media.
The mother’s application before me seeks orders that would have the children return to live with her but, in a change from a long-standing status quo, that the children spend only supervised time with the father. Properly in my view, the mother in her submissions before me retreated from this latter position and now asks for an order where the children spend time with the father each second weekend from Friday afternoon until Monday morning together with one half of school holidays, which are would restore a long-standing status quo.
The father proposes orders in the same terms determined by the SJR and effectively being that the children live with him and spend no time with and have no communication with the mother.
The Court has the benefit of an Independent Children’s Lawyer (“ICL”), Ms Berck. She proposes that X and Y live with the father and have supervised time with the mother with the parents to pay equally for the supervision.
Each parent was self-represented at the hearing before me where the mother appears to have been self-represented consistently but where the father had representation before the SJR and where those solicitors sought, and were given, leave to withdraw before this matter proceeded before me.
Each of the parents filed a number of affidavits.
The mother also adduces evidence from a Dr B who describes herself as a “researcher and independent academic” with a professional interest in persons who have suffered significant trauma including from domestic violence. She provides a risk assessment under cover of her affidavit sworn 29 January 2023. That assessment appears to have been prepared in the form of a questionnaire completed by the mother.
Dr B feels able to conclude that the mother is placed in “the risk group having a high risk of further serious harm to her and/or the children” where the emphasis appears to be placed on “controlling” or “coercive” violence at the hands of the father.
At this early stage of these Reasons I indicate that I place little or no weight on the evidence of Dr B where her conclusions, methodology and experience are not capable of testing at the interim stage of proceedings and where, notably, her post-modernist approach did not include any contributions by the alleged perpetrator, the father, to her assessment. The probity of Dr B’s evidence might, of course, be more evident at the final trial of this matter.
The Court also has the benefit of a Family Report, apparently and surprisingly at this interim stage, being in comprehensive form from Family Consultant, Ms C, dated 19 October 2022 together with an “Evatt Preliminary Assessment Report” dated 6 July 2022 from Family Consultant, Ms D. Being an interim hearing, neither author was tested by cross-examination.
Significantly the Court does have the benefit of a H Psychology assessment on each of X and Y relevant to the demeanour, personality and behaviour of each of the children reported by each to the Family Consultant and where each parent quite obviously relies on their observations on subjective conclusions as to the part played by the other parent in the children’s emotional/psychological behaviours.
It is my understanding that orders have been made for each of the parents to be psychiatrically assessed with interviews to take place this week but, unfortunately, where the reports and assessments cannot be provided for some time and, on some suggestions, perhaps not for up to eight weeks. Submissions were taken from each of the parties and the ICL as to whether I should reserve my determination until those reports/assessments are available. Not surprisingly, the father, supported by the ICL, suggested that the Court awaits the reports whereas the mother urged an early consideration. I determined to proceed without further psychiatric assessments due to other considerations of urgency which will become apparent in these Reasons but where I will provide orders which will allow either of the parents, if they believe relevant matters arise from the report/assessments, to bring the matter back before me or another judge of this Court on short notice.
BACKGROUND FACTS
The mother is 45 years of age. There is no evidence that she is currently re-partnered. The father is 58 years and has re-partnered with Ms F who is apparently the mother of two now adult children. Ms F did not provide an affidavit for the hearing before me.
The parents met in about 2010. They married in early 2012. The parties agree that they separated in early 2019 but continued to live under the same roof until June 2019.
The mother is currently unemployed. She resides in a house in Suburb G. There are no other occupants of the home.
The father lives in the former matrimonial home. He works full-time as a consultant with flexible hours. Ms F works full-time in a senior management role.
Following separation the children continued to live with the mother but spent no time with the father for approximately five months.
Importantly for this application, the parties entered into consent orders in this Court in September 2020 providing inter alia for the children to live primarily with the mother and spend time with the father on alternate weekends between Friday afternoon and Monday morning together with special occasions and half of all school holidays.
There are mutual, recent and historical, allegations of family violence between the parents in various forms of the definition of such violence. There have been domestic violence orders in favour of each of the parties against the other. There have been at least 16 reports to the Child Protection Authorities in respect of the children and, from the evidence before me, none of these appear to have been substantiated.
These proceedings were commenced by the father in an application filed in the Brisbane Registry on 8 March 2022.
Interviews for a Family Report took place on 4 October 2022.
As indicated above, the decision now the subject of the Review was heard and determined by the SJR on 2 February 2023.
THE RELEVANT LAW
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide that the hearing before me proceed as a hearing de novo. Perhaps understandably, the parties, and in particular the father, had difficulty understanding the distinction between a hearing de novo and an appeal where he came to Court armed with the orders of the SJR.
The procedure for conducting an interim hearing is well-established on a long line of Full Court authority. In Goode & Goode[1] the Full Court has said at [68]:
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
[1] (2006) FLC 93–286; [2006] FamCA 1346.
In Marvel & Marvel[2] at [120] the Full Court the also discussed the difficulty imposed by interim hearings and the making of findings on contested evidence thus:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing ... .
[2] [2010] FamCAFC 101.
Nevertheless, the ultimate determination for the Court remains one as to the best interests of the children and it may be that the serious but controversial matters will have a significant bearing upon the interim orders. A later Full Court in Eaby & Speelman[3] at [18] noted and elaborated on the above statement in Goode & Goode as follows:
…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. …
[3] (2015) FLC–643; [2015] FamCAFC 104.
Similarily, an earlier majority of a Full Court in SS & AH[4] observed:
[100]…Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[4] [2010] FamCAFC 13.
The orders that I must make are parenting orders and that being the case I am to have the children’s best interests as my paramount consideration pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”). In determining those best interests I am to reference the parties’ proposals and the probative evidence, such as it is at this interim stage without the benefits of cross-examination and testing, to the mandatory considerations set out and is 60CC(2) and (3) of the Act against the background of the objects and principles of the legislation at s 60B which provides:
(1)The objects of this Part 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; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that 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.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
FATHER’S CASE
The father articulated his case before me succinctly and with particular reference to the Family Report. I summarised his argument, as I understood it and to which he agreed, as follows:
(i)that the father can offer routine, order and consistency in the children’s lives relative to that provided by the mother;
(ii)that the mother alienates the children from him;
(iii)that the mother has had the opportunity to provide appropriate care and parenting for the children with limited success and that the children would hence benefit by the father being the primary parent;
(iv)that the father’s parenting style attends better to the children’s interests;
(v)that the father can provide a balanced adult household with both male and female role models; and
(vi)that the mother may suffer emotional/psychological/psychiatric conditions which impact on her parenting the children.
The father was unable to point specifically to evidence in support of his assertion that the mother “alienates” the children. Indeed, each of the parents agreed that the orders made by consent in September 2020 have essentially been adhered to by both parties. At best, the father pointed to matters such as the mother cancelling a prearranged dental appointment for the children following X and Y being placed into the father’s care by the orders of 2 February 2023. He also asserts that the mother has made allegations of domestic violence against, his partner, Ms F. I find none of this, however, to be probative evidence in support of the assertion of “alienation”.
It is clear from the affidavits, the Family Report, and the submissions of each of the parties together with my observations of them during their submissions that they do indeed offer different personalities, parenting styles and perhaps role models for X and Y. I can easily conclude, as urged upon me by the father, that he is a stricter, ordered, and disciplined parent whereas the mother presents a more laissez-faire style. The children have indicated this much to the Family Consultant.
It is true, as argued by the father, that the mother has had six years to influence the children beneficially by her parenting style. It is a premise of the father’s very argument, however, that it is the mother’s parenting style that has caused the anxiety and depression observed by others, including the psychological assessment, for these children. He rejects any notion that he himself has contributed and, at best, is reluctant to accept the plausible possibility that the children’s exposure to the ongoing and consistent acrimony and conflict between their parents is a prominent cause. Consistently in his submissions, the father was keen to alert the Court to his perceived shortcomings of the mother and to interpret any difficulties with the children as laying at the feet of the mother’s parenting.
I accept the father’s submission that he is able to offer a balanced household for the children in the sense of both male and female role models. I place little weight on the negative comments made by the children to the Family Consultant in respect of Ms F and expect, yet again, that this is a function of the children’s exposure to the ongoing dispute between their parents.
Sadly, the father seemed oblivious to, or not inclined to consider, those matters set out in the Family Report which are suggestive of the children having a positive relationship with each of their parents, a loving relationship with each of them, and a desire to continue a relationship with each.
In summary, I understood the father’s submissions, consistent with his affidavit evidence, to have an unhealthy focus on the mother and what he perceives to be her personal and parenting deficiencies.
THE MOTHER’S CASE
As indicated above, I place no probity for weight on the evidence of Dr B in the circumstances of that evidence being put before the Court at an interim hearing.
Unfortunately, many of the comments I make above in respect of the father are echoed in relation to the mother.
Rather than a focus on the children, the mother commenced her submissions with a vitriolic attack on the father in respect of matters of the family violence. This is despite the fact that the parents have now been separated for some six years and would be expected to have little or no contact save and except for the operation of the consent orders reached in September 2020. After some enquiry from the bench, it seems that the mother is now alleging a form of “systems abuse” at the hands of the father where he has allegedly interfered with her ongoing counselling process. Whilst these matters are undoubtedly of real concern to the mother, it was difficult to return her focus to the best interests of the children and, in particular, their living and parenting arrangements.
The mother emphasised quite correctly, that she has been the children’s primary carer since at least separation in 2017. She also properly argued that the children are denied a relationship with their extended family in circumstances where the maternal grandmother is currently visiting from the United Kingdom and is in Australia only for a further matter of weeks.
The mother says that she has suffered no previous diagnosis of a psychiatric condition save and except an apparent diagnosis of Post-Traumatic Stress Disorder (“PTSD”) apparently directly connected to her assertions of domestic violence.
Upon questioning, the mother asserted that the father himself perhaps suffered from a psychiatric condition and she would value the forthcoming report and assessment on both the parents.
There is no indication otherwise on the evidence that either of these parties suffers or has suffered a diagnosis of a psychiatric condition.
Like the father, the mother places some emphasis on the concerns of the experts as to the children’s “anxiety, trauma, and depression”. She lays the blame at the feet of the father. There is no indication that she considers any contribution herself to these conditions and she, like the father, seemed equally oblivious to the plausible suggestion that the children’s conditions are directly related to their exposure to the parent’s ongoing acrimony.
Like the father, the mother was keen to lay blame on the father and, in her case, fit such blame into a broad definition of “domestic violence”. For instance, she was critical of the father for not signing passport applications for the children where the mother herself has family connections in Britain and holds a dual passport. Strangely, she does not appear to have come to the Court with any specific application to allow the children to travel overseas but prefers to rest blame on the father.
The mother was entirely critical of the Family Consultant and the Family Report itself but, again like the father, perhaps without being able to notice the positives in that Report most prominently by way of the statements from her children and the observations of her children.
THE ICL’S CASE
The ICL made only brief submissions and effectively in support of the father’s case to be primary carer. The matter was stood down for over two hours to allow the ICL to read the relatively brief affidavit filed only the day before by the father and to “prepare” her submissions. Those submissions emphasised what she thought was the risk to the children’s emotional psyche in the care of the mother. It is clear, and she says as much, that the ICL effectively adopted as recommendations some of the observations and suggestions of the Family Consultant and the Evatt Reporter as being unequivocal recommendations.
CONSIDERATION
Not unusually at this interim stage of proceedings, this is a matter where there is much dispute together with mutual allegation and denial. Issues of credit and disputed fact are difficult in the extreme to determine without the testing of the evidence. As such, I note the various authorities that suggest the making of findings in such disputed interim proceeding should be couched with greater circumspection and some caution.
The known and agreed facts are few but relevant and are summarised as follows:
(1)the children have lived primarily with their mother since separation in 2017;
(2)the status quo of the children living with their mother and having weekend and holiday time with their father was sanctioned by consent orders made in September 2020 and, as advised to the parties, matters raised now which occurred prior to the entering of consent orders are of little or no consideration for the Court at this stage subject to argument otherwise;
(3)the children have now lived with the father since early 2023 being a period of just less than five weeks;
(4)the orders, the subject of the Review, have served to completely sever any relationship for these children with their mother by way of contact or communication;
(5)it is agreed that the children suffer from various levels of anxiety, trauma, and/or depression;
(6)the assessments of H Psychology offer that X has a provisional diagnosis of ADHD (moderate severity) and that Y has a diagnosis of a behavioural disorder. The H Psychology Assessment does not assist us as to the causes of these conditions. Each of the parents is keen to blame the other for the children’s emotional difficulties and each is reluctant to look at any contributory or other cause for those conditions; and
(7)the parties agree, and it is blatantly obvious, that these parents continue an acrimonious, critical, accusative, and suspicious relationship.
Where there are denials and the lack of testing of evidence, I am unable to make findings of fact in respect of the mother’s allegations against the father of the domestic violence of various types. I do say, however, and in circumstances where the parents separated as long ago as 2017 and were able to reach consensus by consent orders in respect of their children in September 2020, such issues should not dominate my consideration now as to the children’s best interests.
At this interim stage not every s60CC factor must be discussed in detail[5]. I do address, however, the more relevant factors.
[5] Banks & Banks (2015) FLC93-637
On the evidence I accept that the children have had bonded attachments to each of their parents but where the current cessation of all time for them with the mother will inevitably impact on those attachments.
Each of the parents make allegations of family violence against the other. The children inform each parent that they have been subjected to a form of abuse by the other parent but where such assertions are not corroborated.
There is no evidence of sufficient probity that the children have any forceful wish to live with one or other of their parents and where they are undoubtedly impacted by divided loyalties.
The capacity of each of the parents to attend to the children’s physical, intellectual and emotional needs remains to be tested. Similarly do the mutual assertions of emotional or psychological conditions by one parent against the other and also uncorroborated.
The mere fact of the recent change for the children in living with their father after six years of living primarily with their mother is a dramatic one and compounded by the different parenting styles of each of the father and the mother.
The evidence is that the parties live in close proximity and there are no prominent practical or logistical issues in the children moving between the parents’ homes.
I accept on the evidence before me, and apparently as agreed between the parents, that these parents offer diverse parenting styles and philosophies to the children where the father is strict, ordered and disciplined in style whereas the mother is more laissez-faire and perhaps inclusive in her parenting style. Sadly, these parents do not have the benefit of the experience of these Courts and the various experts who have assisted the Courts over the years who consistently inform judges that exposure to broad and diverse parenting styles can be of considerable benefit to children where, of course, those differences do not result in conflict but where the parents are able to objectively respect and understand the parenting styles of the other.
The father and the ICL place considerable weight on the Family Report from October. A closer reading of that report suggests, however, some misunderstanding as to the premise offered by the author in respect of her recommendations and, more pertinently, the contents of that report which do, in fact, show the children to have a loving and beneficial relationship with each of their parents and where the children, quite clearly on my reading, are desirous of a continuing relationship with each of their mother and father.
The Family Consultant notes mutual allegations of family violence.
The Family Consultant notes considerable notification and activity by the Department of Child Safety but with no substantiated allegations. Notably however, at [10] of the Family Report appears the following perceptive comment:
…Child Safety appear to have expressed their view that should the children continue to be exposed to the persistent acrimony between the parents they will be at risk of cumulative emotional harm.
(Emphasis added)
The mother reported that she had experienced PTSD but denied any other current mental health vulnerabilities. Similarly, there are no indications of any psychiatric history in the father.
The theme of the father’s reporting is, similar to that before this Court, of the mother being physically and emotionally abusive to the children. The mother’s case is similarly reported. Unsurprisingly, each meets the other’s assertions with blanket denials.
It may be of some relevance given the residual animosity between the parents that the father’s partner, Ms F, as observed by the Family Consultant at [48] thus:
[Ms F] presented as polite and engaging, she appeared emotionally invested in [Y] and [X’s] well-being and the current proceedings before the Court and spoke in a manner which was observed to be zealous about her perspectives.
Unlike the parents, the focus of my attention in the Family Report rests with the interviews and observations of the children. At [55] and following X is reported as:
[55][X] presented as withdrawn, softly spoken and somewhat confused child, it was apparent he was nervous to engage with the writer… [X] did appear to become more comfortable as the conversation progressed speaking more openly but was observed to remain somewhat guarded, such as taking long pauses following questions. [X] reported that he does not enjoy school resultant of having difficulty establishing friendships…
… [X] reported that he enjoys his mother’s house where he plays outside with nerf guns, watches YouTube and plays with the next door neighbours. Similarly he reported that at his father’s house he plays outside, uses his scooter and plays on his x-box.
[56][X] reported that he enjoyed living with his mother as she does nice things for him… When asked about discipline in his mother’s house [X] became withdrawn and did not answer the writer, after a long period of time he whispered, “I don’t know, says I shouldn’t do that”.
[57][X] reported that he “doesn’t really like it” at his father’s house, he attributed this to his father being strict and not taking him places. …[X] reflected on an incident which allegedly occurred over a year ago whereby his father “slapped” him with both hands when he could not find his socks and shoes, he reported that there had not been other incidents but that this one had hurt him and caused him concern that his father would “badly hurt” him. Curiously he was able to identify a range of positive aspects of his relationship with his father… [X] was able to articulate an appropriate understanding of feeling safe and reported that he felt safe in his mother’s house and at his father’s house.
…
[59][X] stated his parents are not friends, and reflected on an incident following his trip to [K Town] with his mother, whereby he witnessed his parents physically fighting during an argument in the garage. He reflected on his experience of the relationship prior to separation reporting his father would often have “tantrums” and argue with his mother, he could not further explain these arguments, but described experiencing them as worrisome.
…
[61][X] described his relationship with his brother as a close and mostly positive relationship. He reported that on occasion they argue and physically fight, he described both his parents managing this by separating them, although he asserted that [Y] “spits on me now” …
In respect of Y the Family Consultant observes:
[62][Y] presented as guarded initially, he made no eye contact with the writer and physically turned his body away. Following a period of rapport building and the introduction of a fidget toy, his comfortability appeared to increase. [Y] engaged appropriately throughout the conversation.
…
[63][Y] reported that he lives with his mother, brother and his cat, stating that he enjoys it as he “doesn’t get bossed around”, and said he “does not worry” about his mother. In relation to his father’s house, [Y] reported his father buys nice snacks like lemonade and vegemite shapes and reported he had no worries at his father’s house. [Y] was able to articulate an appropriate understanding of feeling safe and reported that he felt safe at his mother’s house and at his father’s house.
…
[65][Y] reflected on not knowing whether or not his parents like each other. He reported that he believes that his mother does not like his father, but is unsure if his father likes his mother as he “doesn’t talk about it”. … [Y] reported that he is happy at his mother’s house as he is able to spend time with his mother and [X].
The Family Consultant had the advantage of observing the interactions of the children with each their parents. At paragraph [67] and [68] appears the following:
[67][X] and [Y] engaged warmly with [the father], they embraced him and both voluntarily sat in close proximity to him, although there was other available seating. [X] and [Y] appeared comfortable and spoke to their father without issue. The children engaged with the father comfortably… The children discussed their plans for the weekend with their father, smiling and laughing, while reporting their contentment with the plan.
[68][Y] and [X] appeared comfortable whilst with their father, and both children appeared calm. There was (sic) minor behavioural issues observed with [Y] drawing weapons or genitals, however he responded well to his father’s boundary setting and when advised that it was not appropriate, he ceased the behaviour.
Y and X were also observed with their mother and at [70] the author reports:
[Y], [X] and their mother entered the observation room, the children excitedly show their mother what they had drawn with their father, however [the mother] ignored them. [Y] and [X] appeared comfortable with their mother and stood in close proximity to her, no physical touch or affection was observed during the interaction. … [Y] commenced engaging in violent play with dolls and Duplo Lego, colliding the characters violently and destructing/throwing the Lego he had built earlier with [the father]. [The mother] made minimal attempts to redirect him and appeared focused on her game with [X]. [The mother] asked for [Y] to build her something after some time which redirected him appropriately, she offered praise for positive behaviour.
In her evaluation though the Family Consultant suggests at [73] that there appear to be “a range of additional complexities in this current matter, including the ongoing disputed family violence, the persistent and significant acrimony between the parents and counter allegations of emotional and physical abuse of the children”. At [74] the author of the Family Report makes one of a number of premised suggestions being:
…If the Court accepts [the mother’s] account of family violence then [the father’s] behaviour is highly concerning and would be indicative of significant family violence, which has likely had a significant impact on the children both developmentally, emotionally and psychologically.
(Emphasis added)
Similarly, at [75] the Family Consultant says:
…If the Court accepts that [Y] and [X] have been exposed to parental denigration and [the mother’s] allegedly fixed negative perception of [the father], then it is likely that the children’s perception of their father will continue to be skewed in the context of their exposure to their [mother’s] undue influence and their perception of her as trustworthy and honest. It may be that the continued exposure to such views will be experienced by the children as confusing and conflictual and exacerbate their current presentation. At interview both children reported that [the father] was strict and “mean” while simultaneously reporting that they wanted to continue spending time with him… It is likely that the children are being required to change their world view each time they spend time with [the father] and are experiencing loyalty conflicts due to their conflicting desire to align and appease [the mother] in her views, and their desire to have a meaningful relationship with [the father] with whom they appear to have a positive and established relationship.
(Emphasis added)
Further, at [77] the Family Consultant states:
…If the Court gives weight to [the father] and [Ms F’s] allegations that [the mother] is making efforts to obstruct the relationship between the children and their extended preferred paternal family, this would be highly concerning. …
(Emphasis added)
Insightfully at [78] the Family Consultant notes that the children describe differences in their parents parenting style whereby they perceive the mother to be more permissive in her parenting and the father/Ms F to be more “strict” or authoritative. The Family Consultant suggests that the children would benefit from consistency of parenting styles and expectations. Further, she suggests that the children would “undoubtedly benefit from structure, routine and appropriate boundaries across households which will likely contribute to an enhanced ability to emotionally regulate”. At [79] and again insightfully, the Family Consultant suggests that the children have been privy to inappropriate comments by each of their parents against the other and perhaps been subjected to questioning in respect of their time with the other parent.
With still further insightfulness, the Family Consultant concludes at [81]:
…Children who are exposed to extensive parental acrimony and conflict post separation, whereby the conflict does not resolve will continue to be at risk of issues associated with exposure to parental conflict, such as negative mental health outcomes, fractured relationships with peers and one or both parents, developmental regressions and poor educational outcomes. In the event that no significant changes occur and the children are not offered relief from their current experiences within their family, it is likely that they will continue to be at risk of such risk factors and their trajectory as they progress into adolescence and adulthood.
It is noted that each of the parents assert the children alleging physical assault or abuse from the other parent. Notably, the children did not appear to be reluctant in the company of either of their parents and it can be argued that they positively desire a continuing relationship with each of the parents.
At [86], the Family Consultant concludes:
Regrettably, it appears that in the context of the children’s current presentations, the current spend time arrangements are not meeting the needs of the children. It may be that an interim change of residence will allow the children a period of uninterrupted time with [the father], whereby their need to shift their world view and the pressure of aligning with a parent may be relieved. This may offer the children an environment which they will experiences as free of conflict as well as offering them routine, structure and stability. In the event of any changes in the children’s care arrangements, it is crucial that the children are aware of both of their parents support for the relationship with their other parent. Additionally, it will be important that the children have an understanding of the change in residence and that they will continue to be supported in their spend time with their non-resident parent in a safe and meaningful manner.
Despite the above mission statement and the recommendations that follow in accordance with the children moving to live with the father in the interim, it seems that the result has been that these children who have lived for six years with their mother are now in a situation where they are denied all physical contact or any communication whatsoever. To describe this as a drastic response would be an understatement in the extreme.
Where the father and the ICL appear to rely heavily on the Family Report, I am mindful that this is simply another piece of evidence and not determinative of the Courts determination as to the children’s best interests.[6]
[6] Hall & Hall (1979) FLC 90–713.
I am also mindful that the recommendations in the Family Report are premised on the Court “accepting” the assertions or allegations and where, in the main, these allegations are mutual; denied; and not tested.
I accept that the children now manifest anxiety and depression. Where each of these parents are keen to blame the other, they neglect to consider whether they themselves jointly contribute to their children’s difficulties by exposure to their continued acrimony and conflict. The Family Report makes it abundantly clear to me that these children are well aware of their parents poor relationship and it is entirely plausible, without testing of the evidence, that the children statements to each of their parents are made in circumstances where they seek a positive response from the particular parent and a confirmation of loyalty where such loyalty is highly likely to be conflicted. That each of these parents is completely oblivious to this plausible possibility speaks volumes as to the focus that they place on their residual adult conflict to the detriment of their children’s best interests.
I am not satisfied that I should await any psychiatric assessment on each of these parents where the only diagnosis is the mother’s PTSD which in such circumstances simply emphasises her focus on matters of historical domestic violence which, as stated above, should not impact to any great degree on the current best interests of these children.
I am satisfied that the children are desirous of a continuing relationship with each of their parents and can easily conclude that the current complete cessation of a relationship between the 10 and eight year old children from their primary carer of at least six years duration is contrary to their objective best interests and may well have ramifications which are beyond the qualifications of this judge.
I cannot find on the evidence that either of these parents has assaulted the children or treated them in a way suggested by the other parent where, as suggested above, the children’s divided loyalty and keenness to gratify each of their parents is a more likely scenario.
I am unable to determine whether the father’s parenting style or the mother’s parenting style serves better the interests of these two boys. I know only that they described to the Family Consultant relative comfort in the households of each of their parents. I prefer perhaps that these children show traits of adaptability and objectivity not evident in either of their parents.
The whilst previous oft quoted authorities of these Courts in the judgments such as Cowling v Cowling[7] and Cilento v Cilento[8] have been superseded by the process advocated by the Full Court in Goode & Goode (supra) and the significant amendments to the Family Law Act in 2006 and later, nowhere do I understand later authorities to state that the Court is not to consider the nature and quality of an existing status quo, obviously amongst the myriad of other considerations, at an interim parenting hearing. Whilst the father may understandably be critical of some aspects of the mother’s parenting, the fact remains that he entered into consent orders as recently as September 2020 confirming her as the primary parent and where I can now find no change or new evidence of any sufficient materiality, substance or significance that should cause a move from a situation created by those orders. It may be, of course, that the Court finds otherwise upon a proper forensic preparation for trial and testing of the evidence. At this stage, however, I am of the view that the children’s best interests are on balance served by returning to live with their mother and also returning to a situation of spending time with their father on weekends, special days and school holidays in the terms of the consent orders reached by these parents in September 2020.
[7] (1998) FLC 92–801.
[8] (1980) FLC 90–847.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mcguire. Associate:
Dated: 9 March 2023
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