Bates and Henson
[2019] FCCA 60
•18 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BATES & HENSON | [2019] FCCA 60 |
| Catchwords: FAMILY LAW – Whether the children should live in a week-about equal shared care arrangement – whether the father has sufficient parenting capacity to care for the children’s needs – whether the father’s post-traumatic stress disorder affects his ability to control his temper such that it affects his parenting capacity. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 65DAA |
| Cases cited: Mazorski v Albright (2008) 37 FLR 518 |
| Applicant: | MR BATES |
| Respondent: | MS HENSON |
| File Number: | DGC 3294 of 2015 |
| Judgment of: | Judge Small |
| Hearing dates: | 9 & 10 April 2018 |
| Date of Last Submission: | 10 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Howe |
| Solicitors for the Applicant: | Christine J Shanahan & Associates |
| Counsel for the Respondent: | Ms Cranenburgh |
| Solicitors for the Respondent: | None |
ORDERS
In addition to the final orders made by consent on 10 April 2018 the court orders as follows:
The children [X] born …2004 (“[X]”) and [Y] born …2005 (“[X]”) (collectively “the children”) shall live with the parents in an equal shared care regime as follows:
(a)During the school year:
(i) Each alternate week with the father from the conclusion of school on Friday (or 3:30 p.m. if not a school day) to the conclusion of school on the following Friday (or 3:30 p.m. if not a school day) commencing on the Friday prior to the first week of the 2019 school year;
(ii) Each alternate week with the mother from the conclusion of school on Friday (or 3:30 p.m. if not a school day) to the conclusion of school (or 3:30 p.m. if not a school day) on the following Friday commencing on the Friday of the first week of the 2019 school year;
(iii) at other times by agreement between the parties from time to time;
(b)During the long summer holidays:
(i)With the father by agreement between the parties and in default of agreement:
A.from the conclusion of school on the last day of term to 10:00 a.m. on the third Sunday, and from 10:00 a.m. on the fifth Sunday to 3:30 p.m. on the Friday prior to the commencement of the school year in 2019-2020;
B.from 10:00 a.m. on the fourth Sunday of the holidays to the conclusion of school on Friday of the first week of the new school year in 2020-2021 and in each alternate year thereafter; and
C.from the conclusion of school on the last day of the school year to 10:00 a.m. on the fourth Sunday in 2021-2022 and in each alternate year thereafter;
(ii)With the mother by agreement between the parties and in default of agreement:
A.from 10:00 a.m. on the third Sunday of the holidays to 10:00 a.m. on the fifth Sunday in 2019-2020;
B.from the conclusion of school on the last day of term to 10:00 a.m. on the fourth Sunday in 2020-2021 and in each alternate year thereafter; and
C.from 10:00 a.m. on the fourth Sunday to 3:30 p.m. on the last Friday of the holidays in 2021-2022 and in each alternate year thereafter; and
(c)At other times by agreement between the parties.
All extant applications are otherwise dismissed and removed from the Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Bates & Henson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3294 of 2015
| MR BATES |
Applicant
And
| MS HENSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between Mr Bates (“Mr Bates” or “the father”) and Ms Henson (“Ms Henson” or “the mother”).
It is noted Mr Bates had sought property settlement and child support departure orders, but was given leave to leave to withdraw his property Application on the first day of trial. At the same time, his counsel advised the court that he was not pursuing his application for a child support departure order.
There are two children of the relationship, namely [X] born …2004 (“[X]”) and [Y] born …2005 (“[Y]”) (collectively “the children”).
The children live with their mother and spend significant time, including overnight time, with their father, by agreement between their parents. Each Monday afternoon and evening, [Y] spends time alone with his mother and [X] spends time with her father, and on each Thursday afternoon and evening, that situation is reversed, so that in addition to the time they spend together with their parents, they each have “one-to-one time” with each parent each week.
The parents are agreed that they should have equal shared parental responsibility for the children and I will make orders to that effect.
On 10 April 2018, I made some final orders and interim orders by consent. The only issues before the court by the end of trial were whether the children should live in equal time with each parent during the school year or in a regime of nine nights with their mother and five nights with the father per fortnight and for five nights in each school term holiday period.
The father seeks orders that the children live with each parent on a week about arrangement during school terms, and for half of the long summer holidays each year.
The mother seeks orders that the children live with her for 9 nights per fortnight and the father for 5 nights per fortnight. She proposes that the children should spend up to 5 nights in each school term holiday period with their father, and a block of no more than two weeks in the long summer holidays.
The issues (and sub-issues) to be decided in this case are:
A.Whether the children should live with the parents in a week-about equal shared care arrangement, and more specifically:
(i)Whether the father has sufficient parenting capacity to care for [X]’s special needs;
(ii)Whether the father’s Post-Traumatic Stress Disorder (“PTSD”) affects his ability to control his temper such that it affects his parenting capacity;
(iii)What should be the arrangements for the long summer holidays each year?
B.If there is not to be equal shared care, what should the children’s living arrangements be?
Background
Mr Bates was born on …1968 and is therefore 50 years old. He has significant health issues, including PTSD as a result of his military service. He is in receipt of a Veteran Affairs TPI Disability Pension. He was diagnosed with bowel cancer in …2015 and underwent chemotherapy treatment before being declared to be in remission. The mother alleged early in the proceedings that he suffers from alcoholism and a gambling addiction but her counsel told the Court at trial that those matters were no longer of concern, and in any event, the father denies those allegations.
Ms Henson was born on …1970 and is therefore 47 years old. She is a student and carer of [X]. She is currently studying a …Qualifications, which she expects to complete in about 2020. She is not currently engaged in paid employment. She suffers from depression and anxiety, but takes prescribed medication to manage these conditions.
The parties commenced a relationship in …1998 and commenced cohabitation in …1998. They married on …1999.
The parties separated on 3 January 2012. Their divorce was granted on 22 October 2014.
The children are in reasonable overall health but each has special requirements.
[X] lives with quadriplegia cerebral palsy with dystonia and spasticity and epilepsy-like fits. She cannot walk, clothe or feed herself and she needs assistance to bathe and toilet herself. She is dependent on medication and needs equipment to assist her mobility, such as wheelchairs, walkers, rails and ramps. Personal care assistants assist her at home on alternate nights and on alternate full days during school holidays.
At the time of trial she was in Year 8 at Suburb A Special Development School. [X] participates in a number of extracurricular activities, including …Hobbies.
At the time of trial [Y] was in Year 7 at Suburb B Secondary College. He has dyslexia and requires extra tuition which his father has arranged for him. He participates in football at the … Junior Football Club and has swimming lessons.
The children currently live with their mother and spend time, including some overnight time, with their father.
Mr Bates has re-partnered, and lives with his partner and her young son. Ms Henson has not re-partnered.
Procedural History
This matter commenced with Mr Bates filing an Initiating Application, Affidavit in Support, Financial Statement and Notice of Risk on 23 October 2015.
The matter first came before me in the Duty List on 9 February 2016 and was adjourned until 5 May 2016 for Mention.
Ms Henson filed a Response, Affidavit in Support, Financial Statement and Notice of Risk on 21 April 2016.
The matter came before me again in the Duty List on 5 October 2016. I ordered the parties to attend upon a family consultant for the purposes of the preparation of a Family Report and otherwise adjourned the matter for Final Hearing on 9 April 2018.
Ms Henson filed an Amended Response to Initiating Application, Affidavit in Support and Amended Financial Statement on 12 January 2018.
Mr Bates filed his Outline of Case on 24 January 2018. Ms Henson filed her Outline of Case on 25 January 2018.
Mr Bates filed an Amended Initiating Application on 23 January 2018. He filed a Further Amended Initiating Application and Affidavit in Support on 29 March 2018. Ms Henson filed a further Affidavit on 29 March 2018.
Final Hearing commenced on 9 April 2018. Both the mother and father were represented by counsel.
Witnesses for trial were the father, mother and Ms D, the Family Consultant who had prepared the Family Report writer (“Ms D”).
Following the conclusion of evidence and submissions on 10 April 2018, I reserved my decision. On this day, I also made interim and final orders by consent, save for the issues to be determined in this judgment.
Issues and Evidence
Issue A. Whether the children should live with the parents in a week-about arrangement or with the mother for nine nights per fortnight and with the father for five nights per fortnight
The law in relation to parenting orders is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
An order about where and with whom a child will live is a parenting order.[1]
[1] See s.64(2)(a) of the Act
S.60CA of the Act states that when considering making a parenting order the Court must make the child’s best interests its “paramount consideration”.
S.65DAA of the Act states that when an order is made for parents to have equal shared parental responsibility for their children, the Court must consider whether making an order for equal shared care would be in the child’s best interests and “reasonably practical”.
In this case, it is agreed that Ms Henson and Mr Bates will have equal shared parental responsibility for [X] and [Y], and therefore I must consider whether it is in the children’s best interests, and reasonably practical, for them to live in an equal shared care arrangement with each parent.
Mr Bates seeks orders which would see [X] and [Y] living with each parent on a week-about basis during the school year and for half the long summer holidays.
Ms Henson seeks orders for [X] and [Y] to live with her and to spend time with their father for five nights per fortnight each. That is, from Friday afternoon until Monday morning on each alternate weekend, and for one night per week for each child in the absence of the other.
During the interlocutory stages of the proceedings, Mr Bates was living in a two-bedroom apartment in Suburb C, which was not entirely suitable either for both children to stay overnight, or to accommodate [X]’s special needs. At times, his parents were also living at that apartment.
At the time of trial, he and his new partner had obtained rental accommodation in Suburb D only a matter of minutes’ walk from Ms Henson’s home. At that property, the children have their own rooms, and there is appropriate space to accommodate [X]’s wheelchair and other equipment.
Ms Henson, when asked trial, held no concerns about the appropriateness of Mr Bates’ current accommodation.
Nevertheless, while Ms Henson’s home is fitted with all the equipment needed to care for [X], including ramps, hoists and the like, Mr Bates’ is not. I will return to that matter later in these reasons when considering the reasonable practicability of orders sought.
In deciding whether it is in the children’s best interests for them to live in an equal shared care arrangement, there are two matters which were identified at trial as needing determination:
(i)whether the father has sufficient parenting capacity to care for [X]’s special needs; and
(ii)whether the father’s Post-Traumatic Stress Disorder (“PTSD”) affects his ability to control his temper such that it affects his parenting capacity.
During the interlocutory proceedings, Ms Henson expressed a concern that “(d)ue to [X]’s growth it would be embarrassing and inappropriate for her father to bath and tend to her toiletry needs”[2]. Mr Bates acknowledged then that it might be inappropriate for him to continue to bathe and toilet [X] given her age and stage of development.
[2] Affidavit of the mother affirmed and filed 21 April 2016, paragraph 29.
However, at trial, Ms Henson stated that she had no problem with Mr Bates bathing and toileting [X], as [X] was quite comfortable with her father continuing to assist her as he has done all her life.
Under cross-examination at trial, Mr Bates displayed a thorough knowledge of [X]’s needs, including her special needs in relation to food, mobility and personal care, and of her various recreational interests.
He has moved to within a few minutes’ walk of the children’s current home so he can be closer to them in order to provide for their needs.
Mr Bates has arranged speech pathology treatment for [X] and extra tuition for [Y] to address their individual needs, and overall, I was impressed with his expressions of parental responsibility and concern for both his children.
It is the effect of his PTSD on his ability to control his temper which raised concerns for both the mother and Ms D.
In Ms D’s Family Report, dated 2 May 2017, Mr Bates is reported as having been diagnosed with PTSD in 2008 after having “what is commonly called a breakdown” when a psychologist to whom he was referred by the Department of Veterans Affairs (“DVA”) encouraged him to recall his experiences serving in the army in Country X.
Ms D reports that after separation, Mr Bates had spent some six months living in his car before moving to a friend’s home in Town E, and then to a caravan on his brother’s property in Town F, until he leased the apartment in Suburb C about two years prior to the Family Report interviews.
Ms Henson told Ms D that after Mr Bates’ diagnosis, he had been “drinking excessively and gambling”. The parties had purchased a business which unfortunately had resulted in a significant loss of money for them, including the necessity to sell the family home.
In relation to concerns about Mr Bates’ PTSD, Ms D says the following in the Family Report[3]:
42. Mr Bates has suffered PTSD and cancer, which have changed his life insofar as he is no longer able to tolerate alcohol for example. He seemed satisfied that his PTSD is well-managed medically. There was a thought that he may have difficulty managing the two children together for extended periods of time because PTSD by its very nature means a person’s nervous system is more aroused than that of someone who does not have PTSD. Two children can be demanding for people with regulated nervous systems. It may be that he unwittingly seeks reasons not to have them overnight together on a regular basis because of that hyperarousal. While medication might manage that to a degree it does not necessarily reduce it to a level that makes a person relaxed. There are therapies and practices which can assist in reducing that and if he is continuing with trauma therapies he will not doubt (sic) be learning those. People with PTSD are not necessarily aware of their brain and body’s reluctance to be continuously with people, they are usually only aware of the responses when they do something extreme to remove themselves from the company of others. It is likely that living with his parents, who he said continue to argue, is counter-productive to reducing the arousal of his nervous system.
[3] I note that at the time of the Family Report interviews, on 21 April 2017, Mr Bates was living in the two-bedroom apartment in Suburb C with his parents, who were reported to have a rather argumentative relationship.
Later in her report, Ms D addressed the issue of the reliability of people with PTSD. She said:
48. The issue of being “dependable” when a person has PTSD is similar to the issue of them being employable. To be employable a person needs to be reasonably relied upon to attend work. However, when a person has PTSD they cannot always predict when they will be triggered or when their nervous system will be overwhelmed. For that reason they are not generally employable. They can do work but the PTSD means they cannot always be relied upon. It may be the case in relation to Mr Bates’ reliability to always be able to cope with both children on a regular schedule, that sometimes this system will be overwhelmed and he will not be able to manage them. Once again hopefully his current medication makes reliability more possible for him in caring for both children.
49. If orders are made that set out a regular schedule of overnight time with Mr Bates for one or both children it needs to be tempered with the recognition that sometimes he may not be able to cope with caring for both or even one of them.
At that time, it was Ms D’s recommendation that the children continue to live with their mother, and to spend time with their father “individually on a separate night of each week, and collectively on Sundays during the day”.
Once Mr Bates had obtained suitable accommodation, Ms D recommended that “the children eventually spend time with him each alternate weekend from after school or at a practical time on Friday until Monday before school (for [X]) and to school for [Y]”.
However, both parents told Ms D, and it was both parents’ evidence subsequent to the release of the Family Report, that since Mr Bates’ PTSD medication regime was changed in late 2016, he has had less trouble in controlling his temper and the parties’ parenting relationship has greatly improved. Indeed, Ms Henson told Ms D in May 2017 that both parties were “in a much better place now”.
In her Affidavit affirmed and filed 12 January 2018, Ms Henson says, at paragraph 23:
23. The Applicant has improved in his capabilities to care for the children. The Applicant loses his temper at times but has learnt to control it and calm himself down. However, the unpredictability of his temper remains a concern of mine.
Ms Henson then sets out an instance in January 2018 when [Y] had his hair coloured blue, purple and green, stating, at paragraph 24:
24. (…..) [Y] was so happy with his hair colour we sent photographs to the Applicant, believing he would be pleased also. The Applicant was extremely aggravated by the colour of [Y]’s hair. The Applicant verbally abused [Y] over the phone and was extremely angry at [Y]. This incident ended with [Y] crying and I hung up on the Applicant. This is a clear demonstration of the Applicant losing his temper and not being able to control it in the best interests of the children.
When asked about this incident at trial, Mr Bates stated that he had not yelled or been angry at [Y], but that he had not approved of him having his hair coloured in the weeks before he was to start high school. He described the colours in [Y]’s hair as “the gay colours” and “in sequence of the gay flag in the top of his head” and added “not that I have a problem with gays or anything like that”. It was his evidence that he had shown [Y] a picture of a rainbow flag as used by the LGBTIQ+ community[4] and that he had told him: “That’s exactly what you’ve got on your head, mate. My concern is that when you go to school, you will be labelled and you will be picked on from day one of high school and that – I’m not letting you go to school with that.” He said that he did not believe any high school would accept a student having “multiple coloured hair”.
[4] The acronym for the Lesbian, Gay, Bisexual, Transgender, Intersex, Queer “plus” community. The LGBTIQ+ flag is in the form of a rainbow of colours, but with only one colour purple replacing indigo and violet.
It was his evidence that he had not raised his voice when speaking to [Y] on the telephone, saying that he had not blamed [Y] for the situation, and that [Y] had been upset because he had informed him of the connection with the colours of the LGBTIQ+ flag. Mr Bates said that “once I explained them to him, he was like – he wouldn’t even go and see his cousins because of the colour in his hair”.
Apparently [Y]’s hair was then bleached so that he did not attend his first day at high school with multi-coloured hair.
Under cross-examination at trial, after he had given evidence about all the times he had cared for the children, both overnight and during the day in the previous 12 months, some of those times being for multiple school weeks while Ms Henson was attending her student placement, Mr Bates said the following:
I am there, available for basically any time that Ms Henson wants me to have the children and that – I don’t see what your issue is when there is hard evidence in my affidavit that proves I have sufficiently looked after the children for long periods of time. My PTSD has not interfered with that. I have always put the children in priority and the children have always been looked after, fed and taken care of personally, not by carers, not by strangers all the time. By actually me. Every time I have the children, I have the children.
Ms D gave her evidence by telephone at trial. She confirmed her reports[5] and stated that her recommendations in her original report still reflected her views.
[5]An addendum report dated 10 May 2017 simply corrected the mother's birthdate.
Mr Howe, for the father, asked Ms D how PTSD manifests itself. She said:
It sounded as if he becomes anxious and controlling at times, so this is going by the mother’s evidence about that. It sounded as if he had a delayed onset of the PTSD and that was the result of some therapy that was done with him, and so that he probably has reliving experiences, so triggers that – under stress. So those triggers usually – sounded to me as if you can become aggressive and controlling.
After the volume on her telephone had been adjusted, Ms D continued:
The main symptoms to be – from what he was saying and from what the mother was saying – aggressive behaviour. He had been drinking, as far as I understand it, in the past, which can be a form of self-medication, and some gambling behaviour, which is not uncommon also with post-traumatic stress disorder. So those with indicators. I didn’t question too much about that – what kind of symptoms he had, because he reported to me that there had been a diagnosis.
Ms D was asked if it was some of comfort to her that the worst example Ms Henson could find of Mr Bates’ recent behaviour was the incident in relation to [Y]’s hair colour before he started high school.
Ms D replied:
Yes, in terms of serious behaviour, that’s comforting. I think the – the whole issue with PTSD is – and I did described in my report – is that it can have a wearing effect on the people who are around it and so that could potentially include the children. It doesn’t need to be, necessarily, what we might think of a serious aggressive behaviour. It can be a tendency to overreact to someone else’s anger, for example, or something that – so for example, the change in the hair colour – something as minor as that. So I think I have tried to explain that in the report.
When Mr Bates’ version of his reaction to [Y]’s hair being coloured was put to Ms D, and it was suggested that he had behaved “shortly” rather than “angrily”, the following exchange took place:
Ms D: Yes. I – I understand that, but I – I guess when people have PTSD they often don’t recognise the impact of the way they respond on other people, so their perception of that can be quite different to the way that it’s experienced by the people around them.
Mr Howe: In fairness, though, you would have to concede, I assume, that you don’t know if what you’ve just described is the case with this particular person suffering PTSD.
Ms D: That’s right. I – I’m just talking about – and so I talk about this from having had experience of treating people with PTSD, particularly veterans, and so I see the couple, as in the person … (sic in transcript) and the partner, and I guess I take that view because of that experience of treating couples.
Mr Howe: Yes. You’re aware that the father has undertaken therapy at … Hospital?
Ms D: Yes.
Mr Howe: And you’re aware that he has done a 12 week anger management course as part of that therapy?
Ms D: I think – yes, I think he did tell me that. I don’t….. (sic in transcript) my notes in front of me, but I do recall that he did talk about therapy.
Mr Howe: Yes. And is it fair to say that no instance of behaviour caused by PTSD other than his hair colour change incident – that no incidents have been raised with you to cause you any concern – that your concerns are based more generally on your overall understanding of people with PTSD rather than this particular person?
Ms D: That’s correct. I – when I interviewed the parties, my impression was – and it might have come across in the report – my impression was that they were both not avoiding but … (sic in transcript) – it seemed to me as if they were trying to reach an agreement and so not particularly talking about, in detail, incidents that had occurred in the past. So, looking back at the report and recalling the way that they were at interview, it seemed that they were more interested in moving on at that point in getting agreement than they were in talking in a lot of detail about incidents that occurred in the past.
When it was put to her that no particular incidents of the father’s PTSD manifesting in a way which would be detrimental to the children had been mentioned to her, Ms D agreed that was the case.
Ms D agreed that she was comforted by the mother’s evidence that the communication between the parties had improved dramatically over the previous 12 months, and by the fact that the mother had “left the children with the father for two consecutive periods of a week – that’s a two week period – with her coming home on Saturday night in the middle of that two week period while she’s at work placement”.
She was further comforted by the information that the parents had agreed that the children would spend three continuous weeks with their father every Christmas holidays, and agreed that both parents were dedicated to supporting both of their children, that the father had “indicated a willingness to bend over backwards to do whatever is necessary to care for the child (sic)”, and that “really the impression is of two people who have in a sense buried the hatchet – not entirely because we’re here (….) – but, to all intents and purposes otherwise, buried the hatchet and got on with the job of looking after their two children”.
When asked whether she thought the children’s views ought to be given “some weight” given their ages of 14 and 12, Ms D said:
I do. I think my impression of the children, even when I saw them, was that they both wanted to be heard. Certainly [X], at 14, is sufficiently developed and my impression of her was that, despite having … (sic in transcript) issues, a very intelligent young person and … (sic in transcript) quite mature for her age. So her view should carry some weight. I definitely had the impression that day – and I think I said in the report that they loved both parents and seemed comfortable and well cared for in the company of both.
She was very pleased to hear that the father had obtained appropriate accommodation close to the mother’s home.
After her cross-examination by counsel for the father, Ms D, with the permission of the court, made the following comments:
In terms of the equal shared care, my view is that, when children are at the ages that these children are, generally, it’s a good idea to go to equal shared care and the main reason for that is because it tends to remove them from any feeling that they have to be involved in any conflict that is continuing. I understand that – in this matter, that the parents have been probably more cooperative than many and that’s also a good thing in terms of equal shared care. So communication usually – well, it needs to be good usually for the equal shared care to work well, and so I’m very pleased to hear that the communication has improved. (…) And I think that would bode well for an equal shared care arrangement. I didn’t get the impression at all from the children that there was a stronger relationship with either parent, so I think that also bodes well for an equal shared care arrangement. (…) I don’t think I have anything else to say about that, but I would support that if that’s the decision the court makes.
Under cross-examination by Ms Cranenburgh, Counsel for the mother, Ms D made the following response when advised that the mother was concerned that the father may not always able to cope with the children for long periods because of his PTSD:
There can be levels of it, so some people have a lower level; some people have a higher level, where they’re much more reactive, so it sounded to me as this he has improved in the time since I’ve seen the parties. It’s still a question in my mind and did remain a question in my mind whether he would be able to manage the equal shared care on a sustained basic (sic in transcript) and it would be because of the post-traumatic stress disorder. My thought about that was that the parties might need to have a communication that’s good enough for them to adjust around that if it did happen, so there might be times when he is not coping, and if you have post-traumatic stress disorder that can happen. It would be similar to if someone had a physical illness and they weren’t coping at a particular time and needed some help with that from the other party, so they might need to be able to be a little bit flexible in as far as he might need to be able to say to Ms Henson, “I’m not coping at this time. The children will need to live with you for this period of time.” But from what Mr Howe was presenting it sounded as if he had improved to a degree that he would be able to manage the equal shared time. I’ve definitely explained in the report the people are usually not employable because post-traumatic stress disorder can flare up at any time. Sometimes they cope, sometimes they don’t cope, which makes it difficult for them to be employed. And so the care of children, obviously, is – and particularly of [X] is demanding, could be stressful, so I understand where Ms Henson is coming from.
When Ms Cranenburgh suggested that it might be likely to cause more stress for the father’s household if there was sibling rivalry between the children and their father’s partner’s son, Ms D disagreed, saying that sibling rivalry is not necessarily stressful, that it can build resilience, and that it contributes to an individual’s social functioning.
When asked to comment about the father’s alleged anger about [Y]’s hair colour, Ms D said the following:
Well, it’s probably difficult to distinguish whether that response from the father was an effect of post-traumatic stress disorder, as in he has overreacted, or a difference in values between the parents and he has become angry to some degree and let [X] know that. Again, that’s a – it doesn’t sound excessive to me. Parents without the challenges that these parents have been dealing with, you know, a child with a disability will sometimes have that kind of difference in values and they will express it to the children and the children know that they disagree on those kinds of issues. And expressing a degree of anger is not necessarily an issue, so everyone gets angry. It’s a normal human condition. The way it’s expressed can be the issue. So, you know, [X] may have been upset. I probably wonder whether he spoke to his father about that and whether they can talk about how [X] feels or whether he feels shut down and can’t express to his father how he feels if his father is angry about something. That’s another issue.
Ms Cranenburgh asked Ms D for comment about whether the children need to have a primary place of residence, and Ms D said:
I think when children have a stronger relationship with one parent than the other and are much younger, that might be appropriate and necessary, but at the age is that these children are and based on what I saw of their relationships with both parties, I don’t think that’s necessary that they have a primary residence. As long as they have everything they need at both residences and communication is good between the parents, I don’t see that that’s really an issue. And they live very close, so the whole equal shared care, I guess, movement, if you want to put it like that, or legal situation, has suggested on experience that, when people do live as close as they, and children have what they need and communication is good between the parties, that that can work very well for the children.
In response to a suggestion that if the children moved from a situation of primary care with their mother to a shared care regime they might not “have the same closeness to her as they have had in the past”, Ms D said:
Well, my answer to that is that, by the time children reach the ages that these children are, and they have a good relationship with a parent that’s warm and affectionate and loving and they have experienced that all their life up until now, that doesn’t change because there is less time spent with the parent – in other words, it’s incorporated into their internal sense of their relationship with that parent and it extends over time more and more as children develop and grow older. They can retain within themselves the knowledge that they have that close relationship with that parent, and so I wouldn’t expect that, because it goes to equal shared care, if that’s what it is – if that’s what happens, I wouldn’t expect that the children will forget or that they will have any less of a relationship with their mother as a result of that. In terms of [X], I guess I was very struck during the interview – I don’t think I commented in the report, but it was very clear to me that her father’s assistance to her was as intimate as it needed to be and that he was, if I could put it this way, professional about that. In other words, she seemed relaxed about that and comfortable with that, and he seemed experienced as well, and I know that when you work with someone who has a disability that they often experience people having to do intimate things with them and the more professionally that’s done the better for them because it retains their dignity. So he did impress me as somebody who would manage those issues around, you know, being a teenage girl and other intimate things she might need to have and to talk about, that he was quite capable of doing that and that she would not be embarrassed about that.
In response to questions from the bench, Ms D was clear that weekly changeovers would be much easier for the children to cope with than multiple changeovers in each week. She said that for high school children in particular, they have enough changes during the day to worry about without having to remember whose house they are staying at on any given night each week.
She also thought that if clear orders were put in place, and Mr Bates did not feel, as he had said he felt during his evidence, that he had to work around Ms Henson, it would “probably allow him, especially if it is week about, the time and space to sort of parent in his own right, if I can put it that way without having to continually check in with Ms Henson”.
Nevertheless, the mother’s concerns about the father’s ability to cope with caring for two teenage children, one of whom has severe disabilities, are very real.
Historically, it is she who has had to take care of the children when Mr Bates’ mental health has deteriorated, although it must be said that he, too, has stepped up to care for the children when the mother has been unable to for various reasons.
Ms D’s description of Mr Bates’ sensitivity to [X]’s needs, and his ability to care for them, was certainly borne out in my impression of him in the witness box.
Both parties are forthright, down-to-earth people who are intimately aware of and engaged with the issues that arise in care of their children, and both have shown themselves to be dedicated and loving parents to both [X] and [Y].
Their communication has improved over time, and it was the evidence of both that they have been able to work around issues of practicability and agree on the children’s care when the children have clashing engagements.
It must be said that I agree with Ms D’s comment that such issues arise in any family, and particularly in any separated family, whether or not the children, or any of them, live with disabilities.
So, based on the above evidence, what orders should be made to achieve a solution that is both in the children’s best interests and practical?
The issues which a Court must take into account when deciding which orders might be in a child’s best interests are set out in s.60CC of the Act.
There are two primary considerations set out in s60CC(2). These are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgement of Brown J in Mazorski v Albright (2008) 37 FLR 518, Her Honour said at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In Tait & Dinsmore [2007] FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders [2007] FamCA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
There can be no doubt in this case that both of these children have meaningful relationships with both parents.
While both parties have alleged family violence against the other in the form of controlling and coercive behaviour in the past, the only current risk the court must consider is the issue of the father’s PTSD and his ability to control his temper.
All the evidence before the court at trial suggests that Mr Bates has undertaken considerable measures to address his PTSD, with the result that his relationship with both Ms Henson and the children has improved greatly.
Ms D, the only independent witness to give evidence at trial, was satisfied that Mr Bates’ PTSD was being managed sufficiently well such that once she learned that he had obtained appropriate accommodation for the children, she had no issue with the prospect of the children living with each parent in an equal shared care arrangement.
In those circumstances, and taking into account that I have seen Mr Bates under considerable pressure in the witness box without him losing his temper, I cannot find that Mr Bates’ PTSD poses a significant risk to his capacity to care for the children.
S.60CC(3) of the act then sets out 14 “additional considerations” which the court must have in mind when making a parenting order such as the one I am contemplating now, and I will address each of those considerations in turn.
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
[X], who will turn 15 in …, does not speak clearly, but she was able to tell Ms D that she wished to spend more time with her father.
[Y], who has just turned 13, expressed the same wish to Ms D, saying he would like it to be twice per week and every second weekend for the whole weekend.
It was Ms D’s view that the children’s wishes should have considerable weight given their ages and stages of development.
I note, in this context, that it was the mother’s evidence that she did not believe that the children wished to have their parents care for them on equal shared care basis, and I acknowledge that neither child expressed that specific wish to Ms D.
(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The evidence of both parents and both children was that both children have positive, loving and caring relationships with both parents.
It was the father’s evidence that the children get on well with his partner and with her nine-year-old son, albeit that there is some sibling rivalry between them and him.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(i) to communicate with the child;
All of the evidence before the court leads to the conclusion that both parties have taken every possible opportunity to be involved in the lives of both children as much as possible, subject only to their own health issues, and, in Mr Bates’ case, his accommodation issues.
It was Mr Bates’ evidence that he had not been given the opportunity to be involved in decisions relating to National Disability Insurance Scheme (“the NDIS”) funding for [X], and that he would like to be involved in those decisions. I will return to that issue later in these Reasons.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The issue of child support was addressed in some detail at trial.
Mr Bates is in receipt of a DVA pension, and at the time of trial the DVA was taking the sum of $97 per month from his pension to provide child support for [X] and [Y].
However, his Child Support Assessment, provided by the Department of Human Service (Child Support) (“the Child Support Agency”), is for him to pay $650 per month for the period 1 April 2018 to 30 June 2019 and he was more than $20,000 in arrears at the time of trial.
Mr Bates’ evidence was that the Child Support Agency has taken his non-taxable DVA pension into account when assessing his child support liability, and that he ought to be assessed only on his taxable income, which is nil. He says that Ms Henson’s income for child support purposes does not include her Centrelink benefits, and that if his non-taxable benefits are counted, hers should be too.
It is his evidence that he pays for his share of the children’s needs, such as [Y]’s football gear, [X]’s speech therapy and [Y]’s extra tuition when they arise, but Ms Henson was clear in her evidence that it is she who bears the majority of the children’s living costs as they currently live with her.
Of course, if the children were to live with each parent on an equal shared care basis, Ms Henson would be assessed to receive less child support, but at the same time, Mr Bates would be bearing the full cost of the children when they live with him.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
If I were to make an order for equal shared care in this matter, the children would necessarily spend less time with their mother than they have been used to.
Ms D’s view was that the relationships of both children with Ms Henson are robust enough that their quality would not be diminished by that change.
The fact that the parents now live very close to each other means that if either of the children wished to spend time with one parent during the other parent’s time, it would be reasonably easy for the parents to facilitate should they wish to do so.
I note that at the time of trial, the children were each spending one evening a week with each parent in the absence of the other child.
That situation appears to be working well for both children, although the proposal of the mother is that the time be overnight as a result of these proceedings rather than simply an afternoon after school and dinner before the child is returned to her.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Given the parties’ now close proximity, there is much less practical difficulty in the children spending time with both, and that fact also diminishes the expense involved.
(f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
All the evidence before the court, including the evidence of both parents and Ms D, leads the court to find that each of these children’s parents has a strong capacity to provide for the children’s emotional and intellectual needs.
As previously stated, both are well attuned to the emotional needs of each child, despite Ms Henson’s concerns about Mr Bates’ temper, and both have ensured that both children have all the educational assistance they are able to access.
However, considerable attention was paid at trial to how [X]’s NDIS funding is applied, as she requires significant assistance in completing everyday personal tasks.
[X]’s NDIS package is worth approximately $210,000 per year, and Ms Henson’s house has been fitted with all the equipment needed for [X] to live as independently as is possible given her severe disabilities.
The parties purchased a van during the marriage to transport [X] in her electric wheelchair and she also uses a manual wheelchair at times.
Mr Bates’ home does not have all the equipment needed to care for [X] but he has been able to borrow what equipment [X] has from Ms Henson, and Ms Henson gave evidence that she had applied for NDIS funding so that she could buy portable equipment that would be used both for Mr Bates’ home and for holiday and travel purposes.
That is not the same as Mr Bates having permanent equipment at his home to cater for [X]’s special needs, but it does allow [X]’s needs to be met whichever home she is in.
Mr Bates said at trial that the parties had essentially been able to organise for the van equipped to carry [X] in her wheelchair to travel between their respective homes with her, but he was concerned that [X]’s manual chair did not fit in his car.
Mr Bates’ evidence was that Ms Henson has deliberately excluded him from any involvement in the acquisition or administration of [X]’s NDIS package and that he was therefore reliant entirely on Ms Henson for any information about it.
Ms Henson did not deny that, but said it was her understanding that the NDIS would only fund equipment installation at one address and that as [X] was primarily in her care, she was the parent who should have control of the funding.
It is therefore obvious that if I am to make orders for equal shared care, and noting that the parents will continue to have equal shared parental responsibility for both children, further enquiries will have to be made so that, as far as is possible, both parents are able to provide for [X]’s physical and personal needs in their respective homes. It is difficult to believe that the NDIS has not accounted for the situation where the parents of a beneficiary child are separated, but I can make no finding on that issue and stranger things have certainly happened with government funding.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
These children are young adolescents, and therefore their relationship with the parent of the same gender is important to them as they traverse that difficult and challenging stage of their development.
It would appear that while there are no cultural differences between the parents, there are some differences in their parenting styles. For instance, while [Y] told Ms D that his father “plays” with the children more than his mother does, it was obvious from the incident about [Y]’s hair colour that his father might also be the slightly more conservative or strict parent.
[X]’s disabilities are, of course, a major characteristic that needs to be considered in these proceedings, but it is very important that [Y]’s needs are not forgotten or subsumed by [X]’s more demanding needs.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This factor is not relevant in these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents clearly love both their children and want only the best for them.
They have both been, to the extent that each has been able, the best parents they can be to [X] and [Y].
In circumstances where other separated parents continue to squabble over minor matters, these parents have been able to cooperate and put their petty differences aside for the sake of their children, and there is little to criticise in their parenting. Ms D was struck by that, and it is greatly to their credit.
The only criticism I have is Ms Henson’s exclusion of Mr Bates from decisions about [X]’s NDIS package, and Mr Bates’ slightly homophobic message to [Y] about the colour of his hair.
(j) any family violence involving the child or a member of the child’s family;
Both parties allege historical family violence against the other in the form of controlling and/or coercive conduct.
In addition, Ms Henson alleges that Mr Bates’ PTSD has at time caused him to lose his temper, although she could give no more specific example of that than the incident about [Y]’s hair.
While they still have some disagreements about the children’s care at times, that in itself does not constitute family violence.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
Ms Henson obtained an Interim Intervention Order (“IVO”) against Mr Bates in mid-2015.
Mr Bates made a cross-application for an IVO against Ms Henson in 2016 and both applications were resolved with the making of mutual Undertakings in August 2016.
There was therefore no evidence about the alleged violence provided to the Magistrates Court, and no findings were made.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is difficult to know which of the orders sought by these parents is the one least likely to lead to further proceedings, especially when these parties are parenting a child with [X]’s special needs, but it is always preferable for Final Orders to be just that.
(m) any other fact or circumstance that the court thinks is relevant.
I do take the fact that Mr Bates has repartnered with a woman who has a child of her own as a consideration these proceedings.
However, given Ms D’s evidence of the value of siblings (or step-siblings) in the development of children’s resilience, and Mr Bates’ uncontroverted evidence that his partner is available to assist him with any practical difficulties that might arise, that situation is more likely to be a benefit to the children rather than a detriment in this case.
Decision: Issue A
When I consider all the evidence set out above, and especially the evidence of Ms D, who, as I have stated, is the only independent witness in these proceedings, I find that it is both in [X] and [Y]’s best interests, and reasonably practical, to make orders for them to live in an equal shared care arrangement.
I find that the best way to construct that arrangement is for them to live in each parent’s care on a week about basis during the school year, including during school term holidays.
In the 2019 – 2020 holidays the children will spend half of the long summer holidays with each parent, but not in blocks of three weeks. That is because children have not yet had the opportunity to get used to such long periods with the father, and in their particular circumstances I believe it more appropriate to take somewhat cautious approach.
However, from the 2020 – 2021 long summer holidays, when [X] will be 16½ years old and [Y] 15, the children will spend half of the time with each parent in one block.
I will also allow enough flexibility that if either parent wishes to take the children away for a holiday outside those times, they can negotiate a different arrangement.
Issue B. If not, how much time the child should spend with their non-resident parent
As I have decided that the children will be cared for on an equal basis by both parents, this question is moot.
Conclusion
The parents in this matter impressed the court is being thoroughly dedicated to the care of both their children.
They have worked together in difficult circumstances to care for both children’s needs, with that cooperation improving greatly over the 12 months before trial, and I have no doubt that, with the assistance of the blueprint set out in these orders together with the orders they agreed to on 10 April 2018, they will be able to make decisions together in the best interests of both [X] and [Y].
If Mr Bates is able to be involved in decisions about the application and maintenance of [X]’s NDIS funding, a positive message will be given to both children that both parents are working together in their interests and for their welfare.
I certify that the preceding one hundred and fifty five (155) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 18 January 2019
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