Bolton and Bolton and Anor

FAMILY COURT OF AUSTRALIA

BOLTON & BOLTON AND ANOR

[2018] FamCA 742

FAMILY LAW – CHILDREN – Best interests of the children – Where the mother has disengaged from the proceedings – Where the proceedings are undefended – Where the mother has significant mental health concerns – Where the mother is prone to relapse with her mental health – Where the mother’s mental health affects her parenting capacity – Where the father has abused alcohol in the past – Where the Department of Family and Community Services have previously been responsible for the children – Where the father’s alcohol abuse is not ongoing – Where the children have been in the father’s care for three years – Where the children require stability – Where there is ongoing conflict between the parties – Where it is appropriate for the children to remain living with the father – Orders made.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 69ZN

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Ms Bolton

RESPONDENT:

Mr Bolton

INTERVENOR:

Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER:

Ms Hayward

FILE NUMBER:

BRC

2194

2014

DATE DELIVERED:

19 September 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

6 March 2017, 16 June 2017, 11 December 2017 & 19 June 2018

REPRESENTATION

THE APPLICANT:

No Appearance

THE RESPONDENT:

Self-Represented

SOLICITOR FOR THE INTERVENOR:

Crown Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

Orders

That all existing parenting orders be discharged.
That the father shall have sole parental responsibility for the children X born … 2009 and Y born … 2011 (“the children”).
That the children live with the father.
That the children spend time and communicate with the mother as agreed between the parties.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: BRC 2194 of 2014

Ms Bolton

Applicant

And

Mr Bolton

Respondent

And

Department of Family and Community Services
Intervenor

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The parents of seven year old X and six year old Y (“the children”) have experienced some difficulties in the children’s care since they separated in 2012.
These parenting proceedings have been protracted with the final hearing being dealt with on an undefended basis in respect of the mother at numerous court events between March 2017 and June 2018.
The children’s mother (“the mother”) commenced these proceedings in the Federal Circuit Court (“FCC”) in Queensland in 2014 which were subsequently transferred to this court.
In July 2015 the Department of Family and Community Services (“Community Services” or “The Secretary”) intervened in the proceedings as there were concerns about the capacity of the mother and the children’s father (“the father”) who was then caring for the children in New South Wales. The Secretary has held sole parental responsibility for the children since the time of intervention by Community Services in the proceedings.
The Secretary was of the opinion when last involved in the proceedings in December 2017 that there are no longer any concerns about the father’s capacity to care for the children and at that stage the children had been placed with him for about 18 months. The Secretary then proposed orders that the father have sole parental responsibility for the children, that they live with him and spend defined time with their mother. The Independent Children’s Lawyer (“ICL”) and father continue to propose orders in these terms.
Despite having been given the opportunity to participate in the proceedings the mother has not attended any court event for over two years including the final hearing. The question to be determined is whether the orders originally proposed by the Secretary and later agreed to by the ICL and father are in the best interests of the children.

Background

The father who is 47 and mother who is 46 began living together in December 2008. The mother had an eight-year-old child, (“the mother’s older son”) from a previous relationship who formed part of the household.
The parties’ first son was born in 2009.
The parties married in 2010 and their second child was born in 2011.
Community Services has had some involvement with the family for many years having received numerous Risk of Serious Harm (“ROSH”) reports since October 2011 relating to concerns about both the father’s and mother’s conduct.
The parties moved to Brisbane in late 2011 or early 2012 for the father’s position with a government agency.
The parties separated on a final basis in May 2012. Initially the children lived with the mother and spent time with the father.
In June 2013 it was reported to the Department responsible for child protection in Queensland that the mother had attempted suicide on two recent occasions.
In September 2013 the father took the children into his care with the mother’s agreement.
The father moved to New South Wales in early 2014 and lived with the children in a suburb of Sydney. Notifications and reports in relation to the father’s alcohol misuse and mother’s mental health raising child protection concerns were received by Community Services on a number of occasions in January and February 2014.
The mother commenced proceedings in the FCC in Brisbane in March 2014 seeking orders that the children be returned to her care in Brisbane.
The father filed a Response seeking orders that the children remain living with him in Sydney.
On 8 April 2014 a judge of the FCC ordered on an interim basis that the children live with the father and spend time with the mother as agreed between the parents with the father to facilitate the children travelling to and from Brisbane.
On 13 May 2014 the parenting orders were varied to provide that the children spend time with the mother each alternate weekend should she be residing in Sydney. On the same date the proceedings were transferred to the FCC at this Registry.
The mother relocated to live in Sydney at some point in about the first half of 2014.
In May and June 2015 Community Services received a number of further reports about the children being at a risk of neglect due to inadequate supervision from the father. It was reported that on at least two occasions in May 2015 the father was found unconscious as a result of excessive alcohol use at a time when the children were in his care. Reports had also been received regarding a deterioration in the older child’s behaviour at school, the child’s anxious presentation and his regular late arrival at school with the father who appeared to be under the influence of alcohol.
On 6 July 2015 Community Services received a report that the younger child was left unsupervised at a public park for about 30 minutes while the father was passed out due to intoxication. Police collected both the children and took the father to hospital. The father subsequently moved to a residential rehabilitation clinic.
The mother collected the children from the police on 6 July 2015 and placed them in the care of her parents where they remained living for a short time. At that stage the mother was not in a position to care for the children due to difficulties with her mental health. As the father was undergoing residential rehabilitation it was agreed that the children be cared for by a paternal uncle.
Following the incident on 6 July 2015 the ICL requested that that the matter be relisted and the Court was informed that Community Services may seek to intervene in the proceedings.
On 21 July 2015 there was no appearance at a court event by or on behalf of the mother. On this date Community Services were given leave to intervene in the proceedings and orders were made by consent for the Minister for Community Services to have sole parental responsibility for the children and determine the time the children spend with the parents. Following these orders the matter was transferred to the Family Court of Australia.
The children were initially placed with a paternal uncle and the mother did not spend any time with them during that placement though she did have some telephone contact.
In July 2015 the father completed the short residential rehabilitation program to address his alcohol dependency. Following the completion of this program the father received support from a psychiatrist and from a welfare officer at his place of employment where he had returned to work on limited duties. The father was required to attend weekly counselling sessions with a clinical psychologist and participate in ongoing random drug and alcohol testing at work.
A child protection caseworker from Community Services who is responsible for the casework in relation to the children has maintained contact with the welfare officer at the father’s workplace, the father’s clinical psychologist and the father in relation to his progress in maintaining abstinence from alcohol.
In August 2015 the father resumed a relationship with a previous partner (“the father’s partner”). This relationship has been ongoing since that date.
The children were placed in the full-time care of the father at the end of September 2015. Community Services felt that this placement was in the children’s best interests as the father was satisfactorily addressing the child protection issues related to his care of the children.
After the children began living with the father the parties agreed and the caseworker facilitated the mother spending time with the children each alternate weekend from Friday afternoon to Sunday afternoon and extra time during school holidays. This arrangement occurred on 11 weekends and for two periods of one week during school holidays up until late October 2016.
An expert psychiatrist (“the expert”) was appointed to carry out an assessment on the family. The expert interviewed the father, his partner and the children in July 2016 but the mother did not make any arrangements with the expert to enable her to be assessed.
The expert’s report dated 12 October 2016 was released on 20 October 2016. The expert recommended that the children live with the father and spend time with the mother to maintain their relationship with her but that the mother’s time with the children be supervised.
The children had been having regular overnight time with the mother until the expert’s report was released. The mother has spent only limited time with the children since this date. The father, in his affidavit filed 28 May 2018, deposes to the children spending time with the mother roughly in accordance with interim orders but often suspended or changed due to a deterioration in the mother’s mental health or unavailability. The mother’s time with the children is ad hoc and arranged by communication with the father.
In January 2017 the caseworker from Community Services was advised by the welfare officer at the father’s workplace that there were no concerns in relation to the father’s progress in addressing his alcohol misuse and that his ongoing commitment to addressing this issue was supported by ongoing testing. In January 2017 the father’s clinical psychologist also informed the caseworker that he had been satisfied with the father’s engagement and addressing his alcohol misuse since April 2016 and since that time it was no longer necessary for the father to attend any further appointments.
Although the mother did not file an affidavit in the proceedings it is clear from the father’s affidavit and the expert reports she alleges that in the course of a Skype conversation with the children in January 2017 the father made a threat of physical harm to her and as a result she sought that police apply for an apprehended domestic violence order (“ADVO”) for her protection against the father. An interim ADVO providing that the father be restrained from contacting the mother except in accordance with family law orders was in place at the time of the hearing on 6 March 2017. The father denies all allegations of threatening language or behaviour towards the mother and contested the application for a final ADVO which was ultimately dismissed. The father alleges the mother has been charged with making false statements to a public official in relation to the Skype incident.
The mother made arrangements with the expert to attend for an interview and assessment in late January 2017.
At a hearing on 6 March 2017 which was anticipated to finalise the proceedings Community Services sought orders that the father have sole parental responsibility for the children, that the children live with him and spend time with the mother each alternate weekend from after school Friday to Sunday afternoon and half the school holidays.
At that court event the father sought the same orders as Community Services. The ICL also adopted the orders sought by Community Services.
There was no appearance by or on behalf of the mother. In her Amended Initiating Application filed 13 November 2014 she sought that the children live with her, that the parties have equal shared parental responsibility for major decisions and sole parental responsibility for day to day decisions for the children while in their care and that the children spend time with the father each alternate weekend and half the school holidays.
On 6 March 2017 after the proceedings commenced on an undefended basis as against the mother various Local Court files in relation to ADVO proceedings involving the father were requested to be obtained and judgment was reserved.
On 16 June 2017 the proceedings were listed for further submissions following the Local Court file in relation to the father’s ADVO proceedings being made available. Again there was no appearance by or on behalf of the mother.
On that date the Court was informed that there were further proceedings on foot in relation to the parents. The Local Court file in relation to those proceedings was requested to be obtained and the proceedings were adjourned for continuation of the undefended hearing in December 2017. Orders were made with the consent of the father, ICL and Community Services for the father to hold parental responsibility for the children, for the children to live with the father and spend defined time with the mother. Community Services were removed as a party from the proceedings on this date.
The parenting dispute could not be resolved at the court event in December 2017 as the ADVO proceedings against the father had not been finalised and criminal proceedings had also been instituted against the father. The mother did not attend court but had filed an affidavit albeit not in accordance with trial directions. Orders were made for the proceedings to be relisted following the conclusion of the father’s criminal and ADVO proceedings and directions made for each party to file a consolidated affidavit prior to the completion of the final hearing.
On 2 May 2018 the mother filed an Application in a Case seeking “enforcement” of parenting orders as she was not seeing the children pursuant to interim orders in place. She did not appear before the Registrar on 5 June 2018 when her Application in a Case was listed.
The proceedings were listed to be completed on 19 June 2018. There was again no appearance by or on behalf of the mother and her Application in a Case was dismissed.
The ICL seeks orders that the father hold sole parental responsibility for the children, that the children live with the father and spend alternate Saturdays with the mother. The father seeks orders in similar terms.
The ICL also seeks orders that the father be restrained from consuming alcohol to excess while the children are in his care and that both parents adhere to any recommendations of their treating practitioners.
While the mother did not attend Court nor file any affidavit in accordance with trial directions, she did file a Minute of Order prior to the hearing on 19 June 2018 seeking orders that she and the father equally share parental responsibility for the children, that the children live with the father and spend alternate weekends and half school holidays with her.
The proceedings proceeded on an undefended basis as against the mother on 19 June 2018 and judgment in respect of final parenting orders was reserved on that date.

The mother’s non-attendance

The mother commenced these proceedings in March 2014.
The mother has not attended at all court events and last appeared on 14 November 2014.
There was no appearance by or on behalf of the mother on 16 February 2016 or 13 December 2016 following release of the expert’s report when the matter was set down for hearing and the original trial directions were made.
The mother did however attend for the interview and assessment with the expert in late January 2017. A second report was prepared by the expert for final hearing.
The mother has never filed material in accordance with any trial directions made in the proceedings.
On 19 June 2018 the participating parties sought that the Court proceed to deal with the matter to finality in the absence of the mother.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
These proceedings have been extremely protracted and the mother has been given ample opportunity to participate in them which she has not taken up. Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it is in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the mother.
[1] [2014] FamCAFC 14
[2] Set out in s 69ZN of the Family Law Act 1975 (Cth).
In light of the matter proceeding on an undefended basis, the mother’s material will not be read.

Expert reports

The expert carried out two assessments of the family. In July 2016 she interviewed the father, his partner and the children. It had also been arranged for the mother to be interviewed and observed in her interactions with the children at that time but the mother cancelled her appointment with the expert as she said she was suffering from a migraine and did not make arrangements with the expert for a further interview. The expert’s first report dated 12 October 2016 was therefore based upon her assessment of the members of the father’s household only and various documents that had been filed in the proceedings or produced on subpoena to date.
Overall, the expert was favourably disposed towards the father and recommended that the children continue to live primarily with him. Although the expert expressed a number of concerns about the father’s alcohol abuse and associated neglect of the children and psychological harm caused to them, she formed the view that the father’s alcohol abuse had been addressed and “no longer appears to be relevant”. The expert was of the opinion that the children had a loving relationship with their father and a very warm relationship with his partner. The expert was of the opinion that as the children had had considerable instability in the past, it was of great importance for their continuing psychosocial development that they have a greater level of stability in the future. She felt that overall the father appeared to have had a good capacity to provide for the children in all respects except for during the period of alcohol abuse in 2015.

Although the expert had not assessed the mother she expressed the view that on the basis of the considerable available clinical information, the mother has had significant mental health problems for some years and her commitment to the children has not been consistent. On the basis of information on the Community Services file it appeared to the expert that the mother had a tumultuous childhood and has long standing and ongoing mental health issues including a borderline personality disorder. The expert expressed the view at the time of writing of the first report it would appear that the mother did not then have adequate capacity to provide for the children.
The expert identified that the children’s exposure to significant conflict between their parents before and after separation poses a considerable risk of harm to their development. She also referred to the father’s suggestions that the mother was attempting to undermine his relationship with the children and to manipulate them emotionally and psychologically. The expert expressed the view that if this were occurring it poses a very serious risk of harm to the mental health and development of the children. The expert also said that if this were the case then the children’s contact with their mother “would have to be quite limited and possibly supervised”.
The expert identified that [the older child] in particular has special needs in that he has features of high functioning autism. In the expert’s view these difficulties would not have been assisted by him having been exposed to so much instability in the past and for this reason she placed great weight on ensuring [the older child]’s future stability and being provided with intensive psychosocial interventions. The expert opined that [the older child] particularly needs to be protected from exposure to conflict between the parties or any further instability and any attempts to alienate him from a parent. She felt that the father and his partner seemed very well aware of these issues and the need to provide all necessary interventions.
The expert was of the opinion that the children do need to sustain a relationship with their mother and at that stage recommended that the children continue to spend time with her in a supervised setting “as there are indications that she may attempt to alienate them and that would be highly damaging effect (sic) to their development”. The expert went on to recommend “that supervision be maintained over a period of 12 months and if the mother does not show any indication of alienating the children during that period, then their time with her might move to unsupervised and then a program of gradually increasing their time”.
In 2017 the expert prepared a supplementary report. For this purpose she interviewed the mother on 27 January 2017 and observed the mother in her interactions with the children. The supplementary report dated 6 February 2017 was published shortly before the first day of the undefended hearing in March 2017.
The expert also spent a short period of time with the children alone and had a brief conversation with the father when he came to collect the children.
The expert was of the opinion that in the second report that the children have a loving relationship with their mother and continued to be of the view that the children should spend time with her.
Although the expert was of the opinion that the mother was functioning quite well when interviewed and could at that time “provide quite well for the children in most respects” as her mental health problems had been characterised by relapses and crisis the expert remained of the view that there is some risk that these may reoccur. The expert also remained of the view that the greatest risks for the children were their exposure to protracted and bitter conflict between their parents and the mother’s mental health issues.
The mother had also described to the expert a history of alcohol abuse and violence during the relationship perpetrated by the father and said that if her account in this regard could be relied upon that there were other risks posed to the development of the children.
In particular, the mother reported to the expert that in January 2017, the father had made threats against her during a Skype conversation with the children [saying “I’m going to cut you into a million pieces you dumb bitch”] which led to an ADVO being made for the protection of the mother. The expert said that if the mother’s account can be relied on this would constitute interpersonal violence and would pose a serious risk of harm to the children and would also tend to support the mother’s history of ongoing abuse during their relationship.
However, she noted that the father denied the incident occurred and suggested that the mother had made false claims to the police and to the court. The expert expressed the view that if his account can be relied upon it would support his view of the mother as manipulative and as working to damage his relationship with the children quite intentionally rather than as a result of mental health issues.
The expert felt it was likely that the children are aware of the views that each parent holds about the other and this is in itself likely to be undermining their views of the parent and thus undermining the relationship and likely to encourage alienation.
The expert was of the opinion that a finding in relation to the recent alleged Skype incident was a critical matter to be determined. She opined
If [the father’s] version of events in relation to the recent alleged skype episode is reliable, then it supports his view that the mother is deliberately working to undermine his relationship with the children. If that is the case, then it is difficult to recommend that her time with the children would be unsupervised. Such an event would have further undermined what good will remained in their relationship. If, however, it is [the mother’s] version of that episode that is more reliable, then it raises concerns that the father remains abusive to her, as she claims he has been in the past, with all the risks to the children that are inherent in relationships of interpersonal violence.
Elsewhere in her second report she says:
If the facts of the matter regarding the recent skype episode can be determined, they would strongly support one or other of the differing accounts of each parent with obvious implications for what conclusions might be drawn.
Overall, the tenor of the expert’s report is that if the mother’s version of the Skype incident were accepted it does raise concerns about the father’s conduct. This would in the opinion of the expert “further suggest that the children would benefit from spending more time with [the mother]” which in light of her current functioning could be unsupervised and could gradually increase to the children spending alternate weekends with her starting with one overnight and progressing to two and ultimately three overnights on the weekend.
However, if the father’s account of the Skype incident is found to be reliable, the expert opined that is raises concerns that the mother seeks to damage the father’s relationship with the children. She says “if the court were to determine that this is the case then her time with them perhaps should remain limited and supervised, as previously recommended”. In her concluding remarks, the expert again returned to the issue of the Skype incident which she described as “likely to have a critical bearing on the present assessment”. The issue of whether it is in the best interests of the children to spend supervised time with their mother is particularly acute in relation to [the older child]. The expert expressed a view in this regard as follows:
There is continuing cause for concern regarding [the older child]’s adjustment. As this recent interview he again made a number of comments that seemed to indicate a preoccupation with violence and this time he also seemed preoccupied with sexual themes. It remains quite critical that he is provided with intensive psychosocial therapies with expert clinicians.
Overall, the expert’s recommendation did not change in that she assessed the children as being stable in the care of the father and his partner and recommended that they remain living in that situation.
The expert is a Consultant Forensic, Child and Family Psychiatrist with significant experience in assessing parents and children and providing expert reports in family law disputes. The expert has provided two detailed reports in these proceedings and considered the allegations made by both the mother and the father, despite the mother not having filed any evidence with the Court in support of her own contentions. The expert was not required for cross examination at the final undefended hearing on the basis her recommendations were accepted by the participating parties. In these circumstances I accept the expert’s opinions and attach significant weight to them.

The Law & Discussion

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

The primary considerations (under s 60CC(2)) 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.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[4] (2007) Fam LR 518
[5] [2006] FamCA 994
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Although the mother is not participating in the proceedings and the parents’ relationship with each other is highly conflictual the father agrees to orders proposed by the ICL which would ensure that the children will continue to have a meaningful relationship with the mother. He can be taken therefore to agree that the children do receive a benefit from having a meaningful relationship with the mother.
Given the children’s primary residence with the father over the past couple of years it is not surprising that they have a strong bond with him and his partner. The expert was of the view in both her reports that it was important for the children’s current relationship with their father to continue.
Despite the uncertainty and upheaval faced by the children following separation and the limited time they have spent with their mother, it is the view of the expert that the children have a warm relationship with the mother and that it is important and in the best interests of the children that this relationship be maintained. The mother’s disengagement from these proceedings makes it difficult to ensure that her relationship with the children continues into the future.
The benefit to the children of maintaining a meaningful relationship with both parents is given less weight than the need to protect the children from physical or psychological harm or from being exposed to abuse, neglect or family violence which is the more significant consideration in these proceedings.
There have been concerns raised about the possible risk of harm posed by each parent to the children in these proceedings.
As noted earlier in these Reasons, the father engaged in serious abuse of alcohol in 2015 which resulted in the exposure of the children to psychological harm arising from neglect. The risk to the children was so great that they were removed from the father’s care by Community Services and placed in the care of a paternal uncle while the father attended a voluntary alcohol rehabilitation program.
Following the father’s completion of the rehabilitation program and the restoration of the children to his care in September 2015 there appear to have been no further issues of alcohol abuse by the father. It is the expert’s view that the father’s alcohol abuse, and the resulting neglect of and harm to the children, was an isolated period in the father’s life and with the support of his current partner the father is providing well for the children and does not pose any risk of harm to them.
The expert does note in her supplementary report that it will be important that the father continues in treatment to protect against any possible relapse or ongoing risk to the children from his alcohol dependency.
I am of the view that given the children have been safe and well cared for by the father in the three years following their restoration to his care by Community Services and the expert’s view that the father’s abuse of alcohol was an isolated period in his life, the father does not pose an unacceptable risk of harm to the children on this basis.
Although the mother has not participated in the proceedings she has alleged in her interviews with the expert that the father was a perpetrator of violence towards her throughout the relationship which was ongoing until January 2017 when he threatened her in the course of a Skype conversation. As I understand it the father denies all the mother’s allegations about his violence. There is no evidence to support a finding that the father has been the perpetrator of family violence towards the children or to which the children may be exposed or that there is an unacceptable risk that he may engage in such conduct.
Of greater concern, particularly given her disengagement from these proceedings and patterns of concerning behaviour as outlined in these Reasons, are the mother’s mental health and associated potential risks of psychological abuse or neglect of the children in her care.
The mother has a history of long standing and significant mental health problems. In the past she has experienced episodes of severe depression and suicidality. Her mental health problems have been chronic and she has been prone to relapses.
Following her interview with the mother, the expert opined:
In my view [the mother] suffers from Complex Post Traumatic Stress Disorder (PTSD) and recurrent depression, the characteristic profile of survivors of childhood abuse. When complex PTSD has persisted over many years it usually causes personality change, most often of the borderline type, and this appears to have been the case with [the mother] and accounts for some inconsistency in the diagnoses made by various clinicians over time. There is certainly an overlap between the two conditions … and some experts regard borderline disorder as an expression of Complex PTSD or as equivalent … or, at least, as not clearly separable … [The mother] also suffers from recurrent depression which is almost invariably a feature of Complex PTSD … and suicidality is also common in this presentation.
The course of [the mother’s] illness is fluctuating and highly dependent on factors such as relationship crises and other stresses and traumas. In this case the ongoing conflict with [the father], the loss of her children and the restrictions on her career have been major issues that have led to more acute symptoms and at times the need for hospital care. [The mother appears to accept that this is her situation and she does not dispute that as a consequence she is unlikely to be considered suitable as primary carer for her children, but she does wish to have regular and unsupervised contact with them.
The expert was of the view that relapse in the mother’s mental health was an ongoing risk given her history.
The mother has disengaged from these proceedings. There is no evidence as to the current state of her mental health and treatment. She has also been inconsistent in spending time with the children. In these circumstances, I am of the view that the mother may pose a risk of harm to the children.
The question arises as to whether the mother’s time with the children needs to be supervised to mitigate such risk. The father raises the suggestion that the mother is deliberately working to undermine his relationship with the children. The expert opines that if this were occurring she has difficulties recommending unsupervised time with the children.
As the mother has not adduced any evidence to challenge the father’s contention in this regard I accept his allegation that she is attempting to undermine his relationship with the children. In accordance with the expert’s assessment the risks associated with the mother’s care suggest that supervision is required to mitigate that risk. The mother is not participating in these proceedings and neither she, the father nor the ICL proposes orders that would require her time with the children be supervised.

Additional considerations: s 60CC(3)

Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the children and factors underlying those views

Both children expressed a wish to the expert to reside with their mother. However, the expert was of the view that the children’s expressed wishes substantially reflects the mother’s influence and not the children’s genuine views particularly as they appeared happy and well settled with the father and his partner.
Neither child is of an age where there views would be given significant weight, particularly given the weight that must be attached to the need to protect the children from harm.

Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)

It is the assessment of the expert that each of the children have a warm and loving relationship with each parent.
What is also clear from the expert reports is that the children have a close and loving relationship with the father’s partner, with whom they have lived for a number of years.
According to the expert the children also have a “strong bond” with each other.
Beyond the mother herself, the children appear to have little connection, or contact, with the extended maternal family including their maternal half-brother (who is a child of the mother’s prior relationship). This lack of relationship is unfortunate but can only be remedied through the mother’s participation in these proceedings and in the children’s lives, which following separation has been inconsistent at best.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children

Attitude to the children and responsibilities of parenthood demonstrated by each parent

Except for a brief period in 2015 when the father was contending with his alcohol abuse and dependency he has been consistent in fulfilling his obligation to maintain the children and has demonstrated a positive and responsible attitude towards the responsibilities of parenthood. The father has been the primary carer for the children with the assistance of his partner since late 2015 and there is no dispute that he has appropriately cared for and maintained the children, with limited help from the mother, since this time.
Around the time the father was abusing alcohol the mother was experiencing mental health difficulties and was unable to care for or maintain the children in the father’s absence, leaving the children to be cared for by Community Services, and ultimately a paternal uncle.
The mother, from 2016, has been inconsistent in taking opportunities to spend time with the children and participate in long term decision making for them. Despite there being orders of the court in place for her to spend time with the children and Community Services and the father being willing and able to facilitate such contact, such time has often been sporadic.
Since the father took over the primary care of the children in September 2015 the mother has played a limited role in supporting the children in both a financial and a non-financial capacity.
As opined by the expert:
… the mother has been inconsistent in her commitment to the children, perhaps largely as a result of chronic mental health problems. Her failure to present for the first interviews appeared to be reflective of that pattern. [The mother] claims she was ill on the day; a friend rang and left a message to that effect; illness notwithstanding it is of concern that she did not follow through promptly to try and rectify the situation.
The mother’s attitude to the responsibilities of parenthood has been inconsistent at best and does not seem to have improved over the course of these proceedings. By her disengagement from these proceedings despite ample opportunity to participate the mother can be taken to be forfeiting the opportunity to be involved in future decision making for the children and in determining what time, if any, she spends with them.

Likely effect of change in the children’s circumstances

Practical difficulty and expense involved in spending time with and communicating with the other parent

Presently the children spend only sporadic time with the mother due to her inconsistent involvement with the father and children. If orders were made as sought by the father or the ICL, and complied with by the mother, it would see the mother’s time with the children maintained.
In any event, orders being made as proposed by the ICL or the father present little difficulty in their practical application. The effect, if any, is contingent on the mother’s compliance with such orders. In the circumstances these considerations are of little moment.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs

This is in my view the most weighty additional matter to be considered in the proceedings.
In relation to the father’s parenting capacity, the expert made the following comments:
Overall it appears that the father had had a good capacity to provide for the children in all respects, except for the period of alcohol abuse in 2015, apparently due to the severe stress of ongoing difficulties with the mother. Allegations made by the mother suggest other failings, such as more chronic alcohol abuse and domestic violence, but there is not much in the way of independent evidence on those matters. Otherwise the episode of alcohol abuse appears to have been singular and out of character. [The father] voluntarily undertook a rehabilitation programme and presents now as committed to maintain sobriety and a stable adjustment for the sake of his children. Currently he presents as well able to provide for them in all respects.
Although the expert was not able to assess the mother directly in her first report, on the basis of the information available to the expert at that time, including Community Services’ records, the expert was of the view that the mother has “longstanding and ongoing mental health issues” and that her capacity to provide for the children was likely “not adequate” at the time.
The expert also noted in her first report the following:
Parental mental illness adversely affects the development of children …, as does parental personality disorder, especially the cluster B disorders, which include borderline disorder [which appeared from the documents available to be a condition from which the mother may suffer] … However, in terms of parenting capacity, the precise diagnosis is not as important as factors of stability, family resources, good symptomatic control and parenting practices … In the case of [the mother], it appears that few of these factors apply.
In her supplementary report following interview with the mother the expert opined:
At present [the mother] is functioning quite well and has achieved stability in terms of accommodation and work so currently she can provide quite well for the children in most respects; however, the history of her mental health problems is one of relapses and crises and this is the natural history of Complex PTSD and of depression … so there is some risk that these may recur …
Given the mother’s disengagement from these proceedings, her lack of involvement with the children in recent times and there being no evidence before the Court from her as to her current mental health functioning or treatment, I cannot find that all concerns in this regard are not present.
It is clear that the father, who has provided stable care for the children for over three years, has the greater parenting capacity of the parties.

Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent

The expert, in reporting on this consideration, made specific reference to the older child’s special needs as a significant factor in determining the children’s arrangements. The expert opined:
[The older child] has special needs in that he has features of high functioning autism. Those difficulties would not have been assisted by him having been exposed to so much instability in the past. It is quite critical for [the older child] that his future stability be ensured and that he is provided with intensive psychosocial interventions … The father appears to be alert to these issues and keen to provide all necessary interventions. [The father’s partner] is also very aware of the issues and her professional training assists in her understanding the child’s difficulties and needs … [the older child] particularly needs to be protected from exposure to the conflict between the parties or to further instability and, especially, any attempts to alienate him.
The older child’s special needs are a factor that weighs heavily in favour of making orders as sought by the father and the ICL that the children remain living with the father.

Family violence including any family violence order applicable relating to the children or a member of the children’s family

Although the mother has not filed any affidavit in accordance with trial directions she alleged in her interview with the expert that the father perpetrated family violence against her and the children during the relationship particularly when he was abusing alcohol.
The parties have been involved in numerous AVO proceedings, usually involving the mother alleging that the father has behaved in a violent, aggressive and/or intimidating manner towards her. I have not been provided with evidence about any final determinations made in these proceedings.
There is little evidence available to support allegations made by the mother in respect of family violence, particularly in circumstances where she has not filed an affidavit in accordance with trial directions.
The Skype incident detailed earlier in these Reasons and discussed by the expert in her supplementary report is the most detailed allegation of possible aggressive and intimidating behaviour by the father available. It is significant that the expert noted that neither child reported to her that such an incident occurred and felt that there would be some indication from them if they had witnessed the incident as alleged by the mother. In the absence of any evidence from the mother, I cannot make any findings as to the Skype event having occurred as alleged. It is to be noted that the father alleges that he recorded the Skype incident and the mother has been charged with making false allegations as a result.
Similarly, in the absence of any evidence, either from the mother or documents produced on subpoena, allegations of family violence are of lesser significance than the chronic conflict between the parties to which the children have been exposed as discussed earlier in these Reasons.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

The expert recommended in both her reports that the children should not be exposed to further instability in their lives, particularly the older child because of his special needs. It is clearly in the interests of the children for these proceedings to be concluded as soon as possible.
The orders proposed by the ICL and the father may lead to the institution of contravention proceedings compared to orders which leave the mother’s time with the children subject to agreement between the parties.

Any other relevant matter

The children have also been exposed to significant conflict between the parties prior to and since separation. The mother continues to allege that the father behaves in an aggressive and intimidating manner towards her and the father claims that the mother attempts to undermine his relationship with the children and alienate them from him. Each parent also alleges that the other has made malicious and false allegations to various authorities. The children, in the opinion of the expert, are aware of the parents’ views towards each other and have been exposed to this significant conflict between the parties to their detriment.

Parental responsibility

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[6] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[6] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
Both the father and the ICL seek orders that the father have sole parental responsibility for the children.
The mother has in the past sought that she have sole parental responsibility for the children but in her Minute of Order filed in June 2018 she seeks an order that she and the father equally share parental responsibility.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the father and the ICL must mean that the father would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the children and that the mother would have none of the duties, powers, responsibilities and authority with respect to the children.
The father is the only parent participating in these proceedings and has been the children’s primary caregiver for the past three years. The mother has had only sporadic involvement in the children’s lives recently. The parents have a poor co-parenting relationship. In these circumstances I am satisfied that it would be in the children’s best interests for the father to have sole parental responsibility for them.
Given that I have decided that the father is to have sole parental responsibility for the children, I need not turn to s 65DAA of the Act.

Conclusion

Having regard to all of the factors in relation to the best interests of the children, in particular the need for stability in their lives and the need to protect the children from harm, I make orders for the father to have sole parental responsibility for the children and for the children to live with him and spend time with the mother as agreed between the parents.
The father and the ICL sought orders for the mother to spend regular fortnightly time with the children. However, having regard to her ongoing mental health issues, her disengagement from these proceedings and my finding that the father’s concerns about her alienating behaviour are founded, there remain significant concerns that the children may be at risk of harm in her care if it is not supervised. As the expert raised the possible need for the mother’s time to be supervised if concerns about risks to the children in her care remain I cannot be satisfied that the mother having defined, fortnightly unsupervised time with the children is in their best interests.
The mother has not filed any material in accordance with trial directions and has disengaged from these proceedings. The father has demonstrated that he is an appropriate carer for the children and has the capacity to liaise with the mother about her spending time with the children when necessary despite the parents’ poor relationship. In these circumstances, it is appropriate that the father, in exercising parental responsibility for the children, arrange for them to spend time with the mother by agreement with her.
The Orders made are set out at the forefront of these Reasons for Judgment.

I certify that the preceding one hundred and fifty- one (151) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 19 September 2018.

Legal Associate:

Date: 14 September 2018

[2018] FamCA 742

19 September 2018

Key Legal Topics

Areas of Law

Family Law