Arnaud & Arnaud
[2021] FedCFamC2F 512
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arnaud & Arnaud [2021] FedCFamC2F 512
File number(s): PAC 3170 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 9 December 2021 Catchwords: FAMILY LAW – Interim parenting – assessment of risk – allegations of family violence – mental health issues – best interest of children – children to live with father – children to spend significant and substantial time with mother. Legislation: Family Law Act 1975 (Cth) s.65DAA. Cases cited: Goode v Goode [2006] FamCA 1346
Keats & Keats [2016] FamCAFC 156Division: Division 2 Family Law Number of paragraphs: 41 Date of hearing: 1 November 2021 (via video link) Place: Parramatta Counsel for the Applicant: Ms Haughton Solicitors for the Applicant: Family Focus Appearing for the Respondent: Ms Henke Solicitors for the Respondent: Rafton Family Lawyers Appearing for the Independent Children’s Lawyer: Ms Kahlil
Solicitors for the Independent Children’s Lawyer: Laura K Law ORDERS
PAC 3170 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ARNAUD
Applicant
AND: MS ARNAUD
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
9 DECEMBER 2021
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.The parents shall have equal shared parental responsibility for the children:
(a)W born in 2019;
(b)X born in 2016 ;
(c)Y born in 2013; and
(d)Z born in 2012.
2.The children shall live with the father.
3.The children shall spend time with the mother as follows:
(a)During school term in a two week cycle being:
i.In week 1 from Wednesday after school to Monday before school; and
ii.In week 2 from after school on Thursday to 7pm.
(b)During school holidays:
i.At the end of term 4 in 2021 from the conclusion of school until 4pm on the middle Saturday of the school holiday period;
ii.At the end of terms 1, 2 and 3 in 2022 from the conclusion of school until 4pm on the middle Saturday of the school holiday period; and
iii.At the end of term 4 in 2022 from 4pm on the middle Saturday of the school holiday period until the commencement of school in 2023.
(c)On each of the children’s birthdays for a period of 3 hours as agreed between the parents in writing;
(d)On the mother’s birthday for a period of 3 hours as agreed between the parents in writing;
(e)On the Mother’s Day weekend from 9am on Saturday to 6pm on Sunday; and
(f)At all other times as agreed between the parents in writing.
4.Notwithstanding any other order the father shall spend time with the children:
(a)On each of the children’s birthdays for a period of 3 hours as agreed between the parents in writing;
(b)On the father’s birthday for a period of 3 hours as agreed between the parents in writing;
(c)From 8am to 8pm on 26 December 2021; and
(d)On the Father’s Day weekend from 9am on Saturday to 6pm on Sunday.
5.Unless changeover occurs at the children’s school or day-care and unless the parties agree in writing otherwise, the mother shall collect the children from the father’s home at the commencement of the children’s time with the mother and the father shall collect the children from the mother’s home at the conclusion of the children’s time with the mother.
6.The parties and Independent Children’s Lawyer are granted liberty to seek to have the matter restored to the list on 7 days’ notice.
THE COURT FURTHER ORDERS THAT:
7.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Court Child Expert/Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit and Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.
8.The Family Report to deal with the following matters:
(a)Any views expressed by the children the subject of parenting orders sought in this case, provided that the children shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the children with each of the children’s parents and with significant other persons.
(c)The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
(d)The likely effect of any changes in the children’s circumstances, including the likely effect on the child of any separation from:
i.either of the parents: or
ii.any other child, or significant person, with whom the children has/have been living.
(e)The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the children, including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the reporter thinks are relevant.
(h)Each parent’s attitude to the children and to the responsibilities of parenthood.
(i)Any family violence involving the children or a member of the children’s family.
(j)Such other issues as the Court Child Expert/ Family Consultant considers relevant.
9.The parties shall attend all appointments with the Court Child Expert/ Family Consultant and shall ensure the subject children attend all appointments with the Court Child Expert/ Family Consultant, as requested by the Court Child Expert/Family Consultant
10.The Court Child Expert/ Family Consultant may inspect the Court file.
11.Upon the report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
12.Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory Legal Aid Authority; and
(d)A convener of any legal dispute resolution conference.
13.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
14.The matter is to be listed on a date to be advised following release of the Family Report.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Arnaud & Arnaud has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC
The parties are the parents of 4 children, 9 year old Z, 8 year old Y, 5 year old X and 2 year old W.
The parties separated in June 2020. Despite some early agreements about the care of the children, the conflict between the parties has escalated and they can no longer agree about what is in their children’s best interest. Each of them moves the Court for interim orders that the children live with them and spend time with the other parent.
As is not unusual in matters which come before this Court, there are some serious allegations of family violence. What is a little unusual, is the love triangle reminiscent of a Shakespearean tragedy between the mother, the father and Ms B (“Ms B”).
RELEVANT LEGAL PRINCIPLES
The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed (Goode v Goode [2006] FamCA 1346). The Court is often in a position where it is unable to make findings of fact due to no or limited cross examination as occurred in the present case. Even in such constrained circumstances, the Court is still required to determine the applications before it.
In terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected (Keats & Keats [2016] FamCAFC 156).
AGREED FACTS
There are a few agreed facts between the parties, as far as relevant they are as follows:
a.The parties commenced a relationship in 2010, and they were married in 2015.
b.There are four children of the relationship:
i.Z born in 2012, who is 9 years old;
ii.Y who was born in 2013, who is 8 years old;
iii.X born in 2016, who turned 5 earlier this year; and
iv.W, born in 2019 having turned 2 years old more than 6 months ago.
c.In or about April or May 2020, Ms B moved into the parties’ home. Ms B was employed by the parties at Company C.
d.The parties separated on a final basis in June 2020, and the father left the parties home in Suburb D, NSW.
e.Sometime between June and September 2020, the mother commenced a relationship with Ms B.
f.Sometime between August and November 2020, the mother and Ms B moved out of the Suburb D property and moved into a rental in Suburb E, NSW. The father moved back into the Suburb D property shortly thereafter and the children resided between the two homes.
g.On 16 November 2020, an incident occurred involving the mother and Ms B. The children were not in the care of the mother. On this occasion, the mother was admitted to F Hospital and Ms B was charged with assault and criminal damage.
h.On 4 December 2020, the mother asked the father via text message to “take the kids full time for a little while”, although after this time the mother did spend regular time with the children at the maternal grandparents’ home.
i.On 5 December 2020, an Apprehended Violence Order (“AVO”) was made against Ms B for the protection of the mother.
j.On or about 4 June 2021, the mother retained the children by collecting them from school and day care.
k.On 7 June 2021, an incident occurred at the father’s residence between the mother’s sister, Ms G, and the father. As a result, Ms G was charged with intimidation and stalking. An AVO was made against Ms G for the protection of the father.
l.On 10 June 2021, the father commenced these proceedings.
THE ISSUES IN CONTENTION AND OTHER EVIDENCE
There are many issues which the parties cannot agree upon or where one of the parties is simply silent on the issue, making the Court’s task difficult. The Court is assisted by a Child Dispute Conference Memorandum, and helpful submissions by the parties’ legal representatives and the Independent Children’s Lawyer (“ICL”). The mother was cross-examined at the interim hearing.
The Mother’s Evidence
The mother makes serious allegations of family violence and controlling behaviour against the father. This is one of many significant areas of dispute between the parties.
The mother, inter alia, says to the Court that:
a.In November 2015, the mother left the matrimonial home with Z and Y. The mother alleges that she discovered that the father had dating applications on his phone and had been sending promiscuous messages to other women. It is unclear from the evidence of both parties when the parties reconciled and/or when the mother returned back to the home.
b.The father was verbally abusive towards the mother, and in the presence of the children. The mother further alleges that in addition to verbal abuse the father also physically assaulted her:
i.In or about late December 2018, the father, during a verbal disagreement with the mother, pushed the mother around the house and attempted to punch her in the face, however missed and punched the fridge instead. As a result, the father fractured his hand and attended H Hospital for treatment.
ii.In or around 3 June 2020, the father pushed the mother into the walls of their hallways and into their son’s bedroom, which resulted in the mother hitting her head on the doorframe of the son’s room. This occurred after the father forcibly woke the mother up, after she had fallen as asleep having returned from a 14 hour work shift, and because she did not clean their son’s room. The mother attempted to leave the residence, however the father grabbed the mother by both arms, pushed her against the walls of their son’s bedroom and chocked her by the shirt. The mother says the father eventually left the home, after he again grabbed her arms pinning her down to the bed. She says that it was at this point that she told him that their marriage was over, and the father then replied “Don’t worry, I’ll leave”.
iii.On 30 May 2021, the father asked to speak to the mother, after having picked up the children from changeover at the maternal grandparent’s home. The parties began discussing matters pertaining to Z, however the father then tried to discuss their personal relationship to which the mother shut down. The father then became angry, and began yelling at the mother whilst standing over her. The mother told the father that he was scaring her and that the children were watching. The father said whilst pointing at the mother “it’s your fault our family is broken, you’re damaging our kids, this whole situation could’ve been avoided if you had just listened and stayed with me”.
c.The children have expressed anguish and fear that their father would prevent them from seeing their mother, if they were to spend time with the father. The mother says that she has sat with Y and X consoling them about this, often during the night.
d.The children have developed strong and emotional relationships with their maternal family.
e.From 2012 to 2020, the mother was the primary carer of the children, whilst the father worked full-time, which included international and interstate business travel.
f.The mother is not an unfit mother. The mother says that she has now developed new routines, strict dieting and support networks required to ensure that her mental health does not decline and that her children thrive into adults that can contribute positively to society.
g.The father has threatened self-harm in the presence of the children.
h.The mother is currently employed as an office worker at Employer J.
Incident of 16 November 2020
The mother’s relationship with Ms B and the events of 16 November 2020 were the subject of much evidence in these proceedings, including the cross-examination of the mother.
The mother’s written evidence is as follows:
a.That she and Ms B got into an argument, which occurred whilst the mother was on the phone speaking to the father. The children were at all times with the father at his residence during this argument.
b.That Ms B slapped the mother’s face whilst she was on the phone with the father. The intent being to slap the phone away from the mother’s face.
c.That the mother and Ms B argued about the mother’s relationship with the father, which resulted in both the mother and Ms B becoming physically violent toward each other, including throwing items around the kitchen such as plates, bowls, shoes and clothing.
d.Ms B called the police using the mother’s phone, took a shower then left.
e.The mother fell asleep after Ms B left the home, and the police arrived at the home with Ms B and asked the mother “did you try to kill yourself” as the first aid kit was in the bathroom.
f.The mother agreed to be taken to hospital by ambulance and undertook a mental health assessment. The mother was released the next day on 17 November 2020, although she was sectioned overnight.
g.Ms B was arrested for domestic violence, and an AVO was made for the protection of the mother.
The Father’s Evidence
The father denies the mother’s allegations of family violence in their entirety. His accounts are, unfortunately unsurprisingly in this jurisdiction, different as to what the mother alleges occurred throughout their relationship.
The father, inter alia, says to the Court that:
a.Over the past 15 months, he has been the primary carer of the children, with the minor assistance of baby sitters.
b.He has facilitated, as far as possible, time with the children and the mother, including time at the maternal grandparent’s home.
c.The father denies the mother’s allegations that he has engaged in sexual relations in the presence of the children, and that he has perpetrated any domestic violence towards the mother during their relationship or after separation.
d.He has been supportive of the mother’s various issues, including the incident with her ex-partner, Ms B.
The father’s further says that he is concerned about the children should the current living arrangements continue, particularly because the mother has not adequately addressed her mental health issues or her relationship with Ms B, and lacks any insight as to the violence that occurred on 16 November 2020.
The father’s evidence as to what occurred on 16 November 2021 is as follows:
a.Police attended the father’s home at 6:05pm looking for the mother as her phone was registered to his business. The father provided the police the mother’s new residential address.
b.The father arranged for a baby sitter to attend at his home to care for the children, while he attended the mother’s residence as he felt concerned for the mother’s welfare noting the police attendance at his home and an earlier telephone conversation with the mother which ended abruptly following yelling.
c.When the father arrived at the mother’s residence, he observed his car that the mother was using to be significantly damaged. The father began knocking on the front door and ringing the doorbell with no answer. He explained to the police that it was unusual for the mother to walk anywhere, presumably because he arrived at the home before the police.
d.The police gained access to the property by contacting the real estate agent, and the father was advised to wait up the road. He was later contacted by police and advised that he mother was taken to F Hospital with a “suspected overdose and suicide attempt in addition to a number of psychical injuries”.
e.The father was in attendance when the mother was seen by a psychiatrist at F Hospital, and was present when the mother provided her account of what occurred earlier with Ms B. The father says that this account was “quite substantial” and involved the mother being slapped, punched on multiple occasions and dragged by the throat down the stairs of the house.
The father also complains about the mother’s lack of insight in relation to the seriousness of the COVID-19 pandemic. He says that the mother attended an illegal protest during the Sydney COVID-19 lockdown.
Other Evidence
The ICL has helpfully summarised the various documents forming part of Exhibit 2 in her Outline of Case Document, which the Court herein adopts:
•[Page 5 of Exhibit 2] … notes the incident dated 7 June 2021 between the Father and the Mother’s sister Ms G being the accused, “the accused began walking to the car on the street when she told the victim [being the Father] “your lucky I don’t kick the shit out of you. I could beat you up”…. The accused continued to tell the victim that she would “beat the shit out of him”.” It was noted by Police “fears held by victim: victim holds fears that the accused would act out on her threats of physical harm or damage of property. He had greater concerns that she would organised someone else to do it for her. Fears held by police: police also believe that the accused may do the above, police have spoken to the accused about the repercussions of acting out on any threats or committing other offences”. An AVO was put in place in the protection of the Father
•A further incident took place on 26 June 2021 which is detailed on page 8 [Exhibit 2]… It was noted that the Mother had called the police to make allegations against the Father. The Father denied these allegations. The Mother admitted to police “she had a discussions with her ex partner who informed the victim that he was going to be applying for larger portion of custody of the children and he had fears of the children staying with the victim and the accused due to previous incidents known to him.” The police then concluded “after hearing the reasoning by the victim, police are of the belief that the victim had made such claims due to fear and anticipation that the court may deem her as to be the bad person in the situation and wanted to report certain situations before the victims ex partner did”.
•… the incident which occurred between the Mother and Ms B which took place on 16 November 2020. The particulars of the incident is outlined on page 13-14 of [Exhibit 2]... The violence allegedly perpetrated by Ms B included “grabbed the victim by the t-shirt and push her hands in an upwards direction into the victims throat resulting the victim struggling to breathe” and “enraged, the accused has grabbed a broom stick and walked into the lounge room and started hitting the victims TV which was mount to the wall. The accused had struck the TV a number of times destroying the screen in the process”.
•The Mother admitted to Police on page 11 of [Exhibit 2]… “the victim was concerned about speaking to police as she the reaction of the POI when she found out. Police have concerns that the POI will continue to assault the victim and damage the victim property”. “Ms B was charged with the matter before the Court.” (see also page 14 of [Exhibit 2])
•At page 10 of … [Exhibit 2], police record the incident which took place on 16.11.20 where they stated “they observed items on the floor of the and upon closer investigation, they observed them to be numerous empty packets of Nuerofen tablets. Police observed a ¾ empty bottle of peach liquor on the side of the half filled bath tub, with a large box cutter type knife extended next to the bath. Police questions the PAT [being the Mother] in relation to this and she stated that she had taken the tablets in an attempt to end her life and had use the box cutter to cause superficial cuts to her forearm. Police asked PAT if she had been diagnosed with any mental health conditions and she stated that she had been diagnosed with depression, however, was not taking the prescribed medication for the condition as she stated that it was not working. Police were also informed that she had been speaking with a Psychiatrist to help deal with the condition, however was not found this any further as she claimed it did not help either…. Police completed the s22 form… she was taken to F Hospital for mental health assessment”.
•Pages 15-30 of … [Exhibit 2] go to the Mother’s Mental Health Assessment which was conducted by ED of F Hospital. The material produced under subpoena indicate that the Mother has had a longstanding mental health history since she was 16 years of age.
•The Progress Notes which are cited on page 20 of … [Exhibit 2] indicate “prev suicide attempt 12 year ago, cut wrist and ran in front of car”. On page 21 it states “Ms Arnaud reportedly has a past history of depression and anxiety initially diagnosed at age 17. At age 16 years she has had contact with children and adolescent when she had present with low mood and suicidal thoughts in the contents with family conflict and had been diagnosed with adjustment disorder….. She reports first deliberately self-harmed at age 16 years by cutting her wrist superficially with knife when she had been stressed and tensed as a way to release the tension. She reports having self harmed by cutting her wrists about 5 times in total in her life and the last time (before last night) she cut her wrists was 6 months ago when she separated from her husband. 12 years ago she has had a suicidal attempt when she had cut her wrist and had tried to ruin in front of car”.
•It is noted in the Admission Report on page 26 of … [Exhibit 2] “has assessment considered suicidal ideation, preparations or plans? Yes Has assessment considered risk of harm to others? Yes.” However the report continues to say “are there concerns about the safety of dependent children that should be addressed in the Care plan? No”.
•The Father admitted to hospital staff that “…he does not see any issues regarding her safety or welfare regarding Ms Arnaud’s discharge from hospital and he would drive her home. He has contact with client regularly and they both share the care of their four children”. (Page 23 of [Exhibit 2]).
•Material produced by K School indicates “it is recommended that Z’s parents consult a paediatrician as soon as possible to discuss whether Z may meet diagnostic criteria for Attention Deficit/Hyperactivity Disorder…..and whether medication trial would be appropriate”. (page 35 of [Exhibit 2]).
Child Dispute Conference Memorandum to the Court
At paragraphs 28-29, Ms L opines:
This matter contains serious issues related to risk for the children, including that Ms Arnaud purposefully breached public health orders that resulted in the children contracting a serious illness. Her actions may also be seen as engaging in criminal behaviour, and this may be compounded if she has continued to come to the attention of police for breaching public health orders at her house. She did not present as having insight into her behaviour, despite the children’s diagnosis, and it is unclear that she would be willing/able to protect them from harm in regards to this issue in future.
In addition, Ms Arnaud appears to have limited the children’s access to treatment for developmental and/or psychological issues by reducing childrencare. There appears to be issues for Y as well which do not appear to be receiving treatment. It is noted that COVID- 19 restrictions may play some part in this
At paragraphs 30-32, Ms L further opines:
There are allegations of family violence against both Mr Arnaud, Ms Arnaud, and Ms B. There are also allegations regarding the maternal aunt threatening Mr Arnaud. If Mr Arnaud perpetrated family violence against Ms Arnaud as she alleged, this may indicate that he has deficits in his parenting. However, Ms Arnaud intends to continue her relationship with Ms B, and it is possible that this may result in the children being exposed to further violence. Ms Arnaud was minimising of the incident involving Ms B and the Court may be assisted by obtaining further information about this.
The children’s current health situation means that they will be subject to NSW Health directions regarding their isolation status and this will impact their parenting arrangements. However, once the children have recovered, if the Court holds concerns about Ms Arnaud’s ability to protect the children from harm (to their health and from family violence), then consideration could be given to them living primarily with Mr Arnaud.
Ms Arnaud’s proposal was essentially for the children to live in a shared care almost equal time arrangement. With the current state of the co-parenting relationship and family violence allegations, this would be contraindicated.
Court’s Determination
The mother asserts that the children have witnessed and experienced abuse and family violence. The mother alleges that the father also exposed the children to psychological harm on or around 8 June 2020 when he allegedly made threats of self-harm in the children’s presence.
The father asserts that the children are at risk of family violence arising out of the mother’s relationship with Ms B. The mother denied that the incident occurred in the manner which is recorded in the police and hospital notes (forming part of Exhibit 2). She denies saying that Ms B assaulted her in the serious way which is described in those documents. In almost the same breath, the mother says that she suffers from memory loss (as a result of PTSD) and that she cannot remember what she said to the hospital or the police.
On balance, the Court finds that the incident between the mother and Ms B occurred in the manner which was much more serious than that as described by the mother in her evidence. The Court finds that the mother likely minimised the incident, possibly as a result of her reported memory loss but more likely for forensic reasons related to these proceedings.
The Court accepts that the mother is no longer in a relationship with Ms B and that the children were not placed at any immediate risk as a result of the incident on 16 November 2020. However, the mother’s minimisation of the incident is a factor relevant to the determination of the mother’s capacity to meet the children’s needs and of the mother’s capacity to put the children’s needs above her own.
The ICL has met with the children, and they indicated to her that they wanted to continue with the current shared care arrangements, subject to orders of 17 August 2021.
It appears on the evidence that the mother was the children’s primary carer during the parties’ relationship and post 4 June 2021 until orders of 17 August 2021. The children in all likelihood have a strong attachment to each of their parents, given the care that each of the parents has provided to the children.
The circumstances of the children being resumed into the mother’s care in June 2021 are concerning for a number of reasons. On the mother’s case, the father had refused to let the children live with the mother despite the parties’ intention that this occur when the mother was feeling well enough to look after them full-time, and he also refused to let them spend regular and meaningful time with the mother while they were living with him. On the father’s case, the mother (and the mother’s sister) surreptitiously removed the children from school and day-care and refused to let them spend time with the father.
In any event, the children have had unstable and changing arrangements with respect to their care since the parties’ separated. There have continued to be disruptions post the interim orders of 17 August 2021 due to COVID-19 pandemic related issues.
The children have been living with the parents on week about arrangement since August 2021. Each of the parties proposes a change, with the father’s application seeing the children’s time with the mother supervised and significantly reduced, which has been later amended by the filing of the Amended Outline of Case filed 1 November 2021 such that the father now seeks for the children to spend time with the mother from midday on Saturday to midday on Sunday, and for block periods during the school holidays and special occasions. The mother proposes that the children spend time with the father each Tuesday, Thursday and each weekend, which would see the children going between the two homes on numerous occasions during the one week and would not see them spending any weekends with the mother. On either party’s case there would be significant change to the children’s current circumstances which the children appear to favour.
The mother has a number of vulnerabilities arising from her mental health. It appears that she considers the children to be a protective factor for her. The father has certainly, in knowledge of the mother’s past mental health issues and vulnerabilities, thought it appropriate for the mother to have significant and substantial involvement in the children’s care, not only during the parties’ relationship but also post separation.
The difficulty with the mother’s case is that despite clear evidence of her mental health issues and recommendations she has received for treatment, she has not engaged in treatment for her mental health. The evidence is that on 16 November 2020 she attempted to overdose. The mother denies this and says that she “always” takes 4 Neurofen tablets to treat headaches. She denies taking a whole packet of pills or consuming them with alcohol. It is clear though that the mother has reported previous suicide attempts, including cutting her wrists when the parties separated. It does not appear that the mother is taking appropriate steps to address her mental health issues and related vulnerabilities, which may pose a significant risk of harm to the children.
The parents’ agreement for the father to have the primary care for the children from December 2020 to June 2021 speaks of the parents’ capacity to come to joint decisions, of the mother’s capacity to ask for assistance when needed and of the father’s capacity to provide significant care to the children. It also speaks to the support which was provided by the maternal family to the father and the children.
The children are relatively young, and there are specific issues relating to Y and X. The parents do not have a united front in this regard and have not been able to agree on appropriate treatment for Y who on the mother’s evidence suffers from dyslexia and slight dyscalculia and dyspraxia. The mother says that the father ceased Parent Child Interaction Therapy (“PCIT”) treatment for Y because he wanted to “see of the Court made alternative orders” whilst the father says that Y still attends PCIT sessions whilst in his care.
The mother submits that the father has not attended to the children’s medical needs, in particular to X’s dental care. The mother submits that the father does not provide the children with adequate supervision while they are at his place of work. The father denies that this is so.
The mother has taken unnecessary health risks and breached public health orders by attending the demonstrations on 24 July 2021. This has exposed the children to significant risk of harm. Subsequent to the mother and the children contracting COVID-19, apparently unrelated to her attending the demonstrations, the mother followed all health advice and public health orders. The children’s illness was unfortunate, but all have recovered well. During their period of isolation, the children did not spend any face to face time with the father.
There is presently an AVO against the mother’s former partner Ms B for the mother’s protection. There is presently an AVO against the mother’s sister for the father’s protection. There is no evidence of any reported breaches of these orders or that the children have been exposed to any inappropriate or violent behaviours which gave rise to the AVOs.
The presumption of equal shared parental responsibility applies, and it has not been rebutted on the evidence. It is appropriate for there to be an order for equal shared parental responsibility. The children currently attend a school near their maternal grandparents’ home, and there has been a suggestion by the father that he would like to change their schools closer to his residence. Given the upheaval in these young children’s lives since their parents’ separation, school, day-care and the maternal grandparents offer stability and support. It would not be in their best interest for there to be any changes to these in the short term. It is important that both parents have involvement in making decisions regarding the children’s schooling and medical needs, particularly noting the particular needs of Y.
The Court firstly needs to consider making an order for equal time, within the context of s.65DAA of the Family Law Act 1975 (Cth) (“the Act”).
Noting particularly the mother’s minimisation of the incident between her and Ms B and her lack of engagement with mental health professionals in light of her known vulnerabilities, it is not in the children’s best interest that they spend equal time with each of the parents. On balance, an interim order for the children to live with the father is an order that presently meets their needs best.
The father presses for an order that the children spend limited time with the mother. The evidence does not support that the children’s time with the mother should be limited. What it does support however, is an order for the children to spend significant and substantial time with the mother. It is important for them to spend time with the mother after school and on weekends, to have the ability to engage with her in meaningful everyday tasks and to have the ability to engage with her on weekends.
The children will also benefit from spending time with each of their parents during school holidays, in the manner proposed by the mother.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgement will be made.
42 I certify that the preceding 41 (forty-one) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 9 December 2021
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