Bosley & Bosley
[2022] FedCFamC2F 1232
Federal Circuit and Family Court of Australia
(DIVISION 2)
Bosley & Bosley [2022] FedCFamC2F 1232
File number(s): SYC 4100 of 2015 Judgment of: JUDGE MORLEY Date of judgment: 12 September 2022 Catchwords: FAMILY LAW – parenting – undefended proceedings – Mother given repeated opportunities to file Response material – failure by Mother to file any material except for one affidavit towards commencement of matter – appearance by Mother at all Court events – no reasonable or good explanation by Mother – matter proceeded on an undefended basis.
FAMILY LAW – parenting – sole parental responsibility order made for Father – live with Father – spend time with Mother.
Legislation: Evidence Act 1995 (Cth) ss 140, 144
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAB, 65DA, 68L, 68LA
Cases cited: A & A & The Child Representative [1998] FamCA 25
Briginshaw v Briginshaw (1938) 60 CLR 336
Godfrey & Sanders [2007] FamCA 102
Grella & Jamieson [2017] FamCAFC 21
Harridge and Anor & Harridge and Anor [2010] FamCA 445
Johnson & Page [2007] FamCA 1235
KB & TC [2005] FamCA 458
M & M (1988) 166 CLR 69
M & S [2007] FLC 93-313
M v M (1988) 166 CLR 69
Mazorski & Albright[2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
McGregor & McGregor [2012] FamCAFC 69
Napier & Hepburn [2006] FamCA 1316
Tait & Densmore [2007] FamCA 1383
W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892
Division: Division 2 Family Law Number of paragraphs: 151 Date of hearing: 6 August 2021 Place: Sydney Solicitor for the Applicant: Ms Jamieson of Gibson Howlin Lawyers Solicitor for the Respondent: Litigant in Person Solicitor for the Independent Children's Lawyer: Ms Tin of Legal Aid NSW Sydney Central ORDERS
SYC 4100 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BOSLEY
Applicant
AND: MS BOSLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MORLEY
DATE OF ORDER:
12 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.That the Parenting Orders of the Family Court of Australia dated 10 April 2018 are discharged in their entirety, being orders 1 – 22.
2.That the Father has sole parental responsibility for the children X and Y born in 2011 (“X and Y “ or “the children”).
3.That the Father will contact the Mother before making any major long-term parental responsibility decision with respect to the children and attempt to come to an agreement and if an agreement cannot be reached, he will inform her of the decision that has been made.
4.That the children, live with the Father.
5.That X spend time with the Mother as follows:
(a)From after school Friday until 6:00PM Sunday, each alternate weekend in school terms.
(b)From after school Friday until 4:00PM Saturday, each alternate weekend in the other weeks, in school terms.
(c)During school holidays, for the time in orders 3(a) and 3(b) and otherwise additional time by mutual agreement but for no more than 3 nights in one block.
(d)On X and Y’s birthday, each year, by way of agreement.
(e)At Christmas time as follows: –
(i)In years ending in an even-number, commencing 2022, from 5:00PM Christmas Eve, until 1:00PM Christmas Day afternoon; and
(ii)In years ending in odd numbers, commencing 2023, from 1:00PM Christmas Day to 12 noon Boxing Day.
(f)At Easter time as follows: –
(i)In years ending in an even-number, commencing 2024, from 9:00AM Good Friday, until 4:00PM on Easter Saturday; and
(ii)In years ending in an odd number, commencing 2023, from 4:00PM on Easter Saturday to 4:00PM Easter Monday.
(g)On Mother’s Day from 5:00PM the night before until 6:00PM on Mother’s Day.
(h)Other times by mutual agreement.
6.That the Father is to encourage Y to spend time with her Mother in accordance with order 5 and otherwise Y is to spend time with her Mother by mutual agreement between the parties.
7.That the Father spend time with the children, if not already in his care, as follows:
(a)At Christmas time as follows: –
(i)In years ending in an odd number, commencing 2023, from 5 PM on Christmas Eve, under 1:00PM Christmas Day afternoon; and
(ii)In years ending in an even-number, commencing 2022, from 1:00PM Christmas Day to 12 noon Boxing Day.
(b)At Easter time as follows: –
(i)In years ending in an odd number, commencing 2023, from 9:00AM Good Friday, until 4:00PM on Easter Saturday; and
(ii)In years ending in an even-number, commencing 2024, from 4:00PM Easter Saturday to 4:00PM Easter Monday.
8.During the periods in time in which the children are with either parent, they are at liberty to speak with the parent with whom they are not spending time: –
(a)By way of telephone, including FaceTime or Skype, between 7:00PM and 7:30PM on each evening; and
(b)Such other times as requested by X and Y.
9.That each parent shall inform the other of any significant health, safety or welfare issues that occur whilst X and Y are in their care, within 2 hours of the said event taking place.
10.That both parties are at liberty to attend any of X and Y’s educational and sports events, in addition to all medical and extra-curricular activities.
11.That both parties will be mindful of an attempt to make X and Y available to the other parent, should a weekend away or extended family outing be organised by the other parent and assist and facilitate both children to attend this family function.
12.That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence of or within the hearing of either of the children AND each of the parents is further restrained from allowing either of the children to remain in the presence of or within either of the children’s hearing of any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
13.That the Mother attend upon her general practitioner at least every 2 months and obtain a medical report to be forwarded to the Father setting out the current medication prescribed to the Mother, confirmation or otherwise that the Mother remains compliant with her medication, treatment, recommendations and referrals given to the Mother for any specialist treatment for mental health issues and in relation to her sleep disorder AND that the Mother authorise by these Orders her general medical practitioner or any other treating medical practitioner to provide to the Father a medical report every 2 months and to communicate with the Father any non-compliance or concerns the Mother’s treaters may have in relation to the Mother’s mental health.
14.That in the event the Mother suffers from a further episode of illness in relation to her mental health issues or her sleep disorder that requires hospitalisation, then the time that she is to spend with the children is to be suspended until such time as the Mother’s treating medical practitioners have provided a written report to the Father that her condition has returned to a satisfactory state.
15.That in the event that the Father intends to reside other than with the paternal grandmother, Ms C, and so have the children reside other than with the paternal grandmother, Ms C, the Father must give notice to the Mother no later than 14 days prior to such change of residence of his intention to so change his place of residence and the children’s place of residence and include details of the intended date of such change of residence and of his intended new place of residence for himself and the children.
16.That the Father must continue his treatment with Dr D, or any other psychiatrist of his choosing, and must inform Dr D, or any other treating psychiatrist, that if he requires hospitalisation, he must inform the Mother within 24 hours of such occurrence, by email at … .com.
17.That Dr D, and any subsequent treating practitioner, of both the Mother, the Father or the children, are to be provided with a copy of these orders, along with the children’s schools.
18.That the Father will continue to facilitate counselling for the children, as recommended by their psychologist and/or general practitioner, and will give authority for the Mother to obtain information regarding the children’s progress with any treating psychologist or counsellor. That if participation by the Mother in any sessions is recommended by any psychologist or counsellor treating the children, the Father will facilitate the children’s attendance, including Y, and such attendance will be at the cost of the Mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bosley & Bosley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
Introduction
These Reasons relate to an undefended final hearing of parenting proceedings between the Applicant Father, Mr Bosley (‘the Father’) and the Respondent Mother, Ms Bosley (‘the Mother’) concerning their twin daughters, X and Y (‘the children’). X and Y were born in 2011 and were 10 years of age at the time of the hearing.
Unfortunately, these are the second final parenting proceedings concerning the children. The previous proceedings commenced in June 2015 and concluded with final parenting orders by consent on 10 April 2018.
Relevantly, those final parenting orders provided for:
(1)The parents to have equal shared parental responsibility for the children;
(2)The children to live with their Mother;
(3)The children to spend defined time with their Father each alternate weekend from Friday to Monday and in the other week from after school Tuesday until the start of school Wednesday, time during school holidays and time on special occasions.
The final parenting orders also provided that the Father was to continue to reside with the paternal grandmother for a period of not less than two years from the date of the orders, and during that time to be accompanied by the paternal grandmother whenever spending time with the children except for periods of not more than 4, then 6, then 8 hours – increasing at 3 monthly intervals – when he could spend time with children without that supervision or accompaniment.
An order was also made requiring that in the event that the Father suffered from “a further episode of illness for whatsoever reason that requires hospitalisation” his time with the children was suspended until his treating medical practitioner provided a written report to the Mother that his mental health had returned to a satisfactory state.
The balance of those final orders related to telephone time between the children and the parents and notification between the parents in relation to medical issues and some other matters not strictly relevant for these Reasons.
In November 2018, the Mother was hospitalised with a serious illness and the children came into the Father’s care and have remained in his care since that time.
This tranche of the proceedings was commenced by the Father filing an Initiating Application together with supporting documents on 26 July 2019 seeking that the children live with him, that he have sole parental responsibility for the children, and that they spend defined time with their Mother.
The Father’s application sought both interim and final orders.
The first return date was on 18 September 2019 before Registrar Campbell (as his Honour then was). The Father was represented before the Court and the Mother appeared on her own behalf.
An order was made that the Mother file and serve a Response and supporting documents by 17 October 2019. It is salient to note that she did not do so. An order was made for the parties to attend a Child Dispute Conference on 19 December 2019.
On 25 October 2019, the Mother filed the only document that she has filed in these proceedings, and affidavit by herself sworn on 25 October 2019.
On 18 February 2020, I conducted an interim hearing of the Father’s application for interim orders. Once again the Father was represented by his solicitor advocate, Ms Jamieson, and the Mother appeared on her own behalf.
I considered the evidence contained in the Mothers affidavit of 25 October 2019 and I also considered a minute of orders sought provided by the Mother at the interim hearing, despite the Mother not having filed any Response in the proceedings and therefore having no application before the Court.
At the end of the interim hearing, I reserve judgement and I made an order pursuant to section 68L of the Family Law Act 1975 (‘the Act’) for the children to be represented by an Independent Children’s Lawyer (‘ICL’) in the proceedings, as a result of which originally Ms Connor and later Ms Tin came into the matter as ICL for the children.
On 14 December 2020 I made interim orders as a result of the interim hearing as follows:
1. Orders one, three, four, five, six, seven, 12, 13, and 15 of the orders made by consent in the Family Court of Australia at Sydney on 10 April 2018 are discharged.
2. That the children [X] and [Y] born [in] 2011 (‘the children’) live with their Father.
3. That the children spend time with their Mother as follows:
a. Each alternate weekend from 5:00PM on Friday until 7:00PM on Sunday;
b. During each school holiday period at the end of terms 1, 2, and 3, for seven consecutive nights incorporating the time in order (3)(a) and incorporating the time in order (3)(f) if Easter falls in school holiday time;
c. During the school holidays at the end of term of 4, for two blocks of seven consecutive nights at times agreed between the parties but failing agreement for the first and third weeks of such school holiday, the time commencing on the Monday of each week, and with the time in order (3)(a) to be suspended during weeks 1 to 4 only of the Christmas school holiday;
d. On the children’s birthday by way of agreement and failing agreement from after school until 6:00PM during school days and from 10:00AM until 1:00PM on weekends for years ending in order numbers and from after school until 8:00PM during school days and from 1:00PM until 8:00PM on weekends and for years ending in even numbers, unless order (3)(a) applies and the children are otherwise spending time with their Mother;
e. For Christmas time in years ending in an even number from 3:00PM on Christmas Day at 6:00PM on Boxing Day and in years ending in an odd number from 5:00PM on Christmas Eve until 3:00PM on Christmas Day;
f. At Easter time, in years ending in an odd number from 9:00AM on Good Friday until 4:00PM on Easter Saturday and in years ending in an even number, from 4:00PM on Easter Saturday until 4:00PM on Easter Monday, the time in order (3)(a) to be suspended during this period;
g. On Mother’s Day, from 5:00PM the night before until 6:00PM on Mother’s Day; and
h. At other times by mutual agreement between the parties
4. That the Mother attend upon her general practitioner at least every two months and obtain a medical report to be forwarded to the Father setting out the current medication prescribed to the Mother, confirmation or otherwise that the Mother remains compliant with her medication and setting out any with errors given to the Mother for any specialist treatment for mental health issues and in relation to her sleep disorder.
5. That in the event the Mother suffers from a further episode of illness in relation to her mental health issues or her sleep disorder that requires hospitalisation, then the time that she is to spend with the children is to be suspended until such time as the Mother’s treating medical practitioners have provided a written report to the Father that her condition has returned to a satisfactory state.
6. That in the event that the Father intends to reside other than with his Mother, [Ms C], and so have the children reside other than with his Mother, [Ms C], the Father must give notice to the Mother and to the Independent Children’s Lawyer no later than 14 days prior to such change of residence of his intention to so change his place of residence and the children’s place of residence and include details of the intended date of such change of residence and of his intended new place of residence for himself and the children.
Another order was made on 14 December 2020 for the Mother file and serve her Response and supporting documents by 15 January 2021. She did not do so.
The matter was next before me on 9 June 2021. The Mother again appeared self-represented and again an order was made that she filed her Response, affidavit, and Notice of Risk, this time by 23 July 2021, with an accompanying order that:
In the event that the Respondent Mother does not comply with the direction herein to file her Response material, then the matter will proceed to undefended hearing on the basis of the Applicant Father’s application and evidence and any evidence presented by the Independent Children’s Lawyer without further opportunity to the Respondent Mother to place evidence before the Court.
I also made an order that a referral certificate issue from the Court referring the Mother to a lawyer for legal assistance pursuant to rule 12.02 of the then-current Federal Circuit Court Rules 2001 (Cth), and I made a notation that:
The Court has given advice to the Respondent to consult with a Legal Aid duty solicitor at the Lionel Bowen Building, 99 Goulburn Street, Sydney, on level 4 on Tuesday, 15 June 2021 to have a conference in relation to these proceedings.
but it seems that it was ultimately to no effect.
I also made a notation that:
The Court has, again, advised the Respondent Mother to attend to filing her Response material in this matter and that she runs the risk of the matter proceeding on an undefended basis on the next occasion if she does not file her Response material or if she files her Response material after the deadline provide for in order 2.
The matter was listed for 2:15PM on 6 August 2021 for further mention and directions in the event that the Respondent Mother had complied with the order to file her response material, and for undefended hearing in the event that the Respondent Mother failed to comply with that order.
The Mother did not file any material.
On 3 August 2021, the matter was mentioned before her Honour Judge Harland in the National Winter Call-Over. The Mother appeared on her own behalf. An order was made that the matter remain listed on 6 August 2021 2:15PM before me, and Her Honour noted that:
The Respondent Mother has not complied with previous orders and has not filed any responding material in these proceedings.
On 6 August 2021, the matter proceeded to undefended hearing. The Father was represented by his solicitor advocate, Ms Jamieson, the Mother appeared on her own behalf, and Ms Tin appeared as the ICL.
The hearing was conducted by Microsoft Teams link with all parties, the Mother sitting in her car throughout.
The material relied upon
The Father relied upon the following material;
(1)A Case Outline document prepared by Ms Jamieson and containing a minute of the orders sought by the Father;
(2)His Amended Initiating Application filed for August 2021;
(3)His affidavit adopted by electronic signature and dated 30 July 2021 and filed that day;
(4)The affidavit of Ms C, the paternal grandmother, adopted by electronic signature and dated 5 August 2021 and filed that day; and
(5)The affidavit of Dr D adopted by handwritten signature on 6 August 2021 and filed that day.
I made an order that sworn or affirmed copies of each of the affidavits on which the Father relied were to be filed by 20 August 2021, and they were so filed.
In the Father’s Case Outline document, Ms Jamieson indicated that the Father also sought to read as evidence the Mother’s affidavit sworn and filed 25 October 2019. As the Father put that affidavit into evidence in circumstances where the Mother was not entitled to adduce evidence in undefended hearing, I have read and considered the Mother’s evidence in that affidavit.
The Father also relied upon the following exhibits:
(1)Exhibit A1 – letter dated 29 October 2019 from Dr E, Respiratory & Sleep Medicine Physician to Dr F in relation to the Mother’s health and in particular in relation to review of the Mother for excessive daytime hypersomnolence (also admitted into evidence at the interim hearing);
(2)Exhibit A2 – letter dated 21 November 2019 from Dr G, Consultant Psychiatrist to Dr E in relation to the Mother’s referral for a psychiatric assessment prior to consideration of stimulant treatment for idiopathic hypersomnolence (also admitted into evidence at the interim hearing);
(3)Exhibit A3 – letter dated 21 June 2018 from Dr H, Consultant Psychiatrist to Dr J in relation to assessment of the Mother for referral to “the DBT Program at K Clinic” (also admitted into evidence at the interim hearing);
(4)Exhibit A4 – Mental Health Pre-Admission Form for the Mother at Healthscope dated 26 July 2018 (also admitted into evidence at the interim hearing); and
(5)Exhibit A5 – Child Dispute Conference Memorandum to Court dated 23 December 2019 in relation to separate interviews with the parents on 19 December 2019 by Family Consultant Ms L.
The ICL relied upon a Case Outline document prepared by Ms Tin, and the following exhibits:
(1)Exhibit ICL1 – letter dated 25 March 2021 from Ms M, Psychologist N Clinic addressed To Whom It May Concern in relation to the Mothers mental health treatment progress at that time, Ms M being the Mother’s then treating Psychologist;
(2)Exhibit ICL2 – letter dated 4 August 2021 from Dr D to Ms Jamieson in relation to the Father’s treatment and care for mental health issues; and
(3)Exhibit ICL3 – undated letter (referring to an email dated 27 July 2021), from Ms O, Principal of P School, to Ms Tin in relation to X.
In addition to the written submissions contained in her Case Outline document, Ms Jamieson made verbal submissions for the Father. Ms Tin made verbal submissions as the ICL, and the Mother made oral submissions on her own behalf.
The orders sought
Ms Jamieson indicated for the Father in her Case Outline document that the Father did not oppose the orders sought by the ICL in her Case Outline in lieu of orders 13 and 15 as sought by him, and accordingly I will incorporate those orders as suggested by the ICL into the Father’s orders sought in place of those set out in his case outline. The Father sought the following orders:
(1)That the Parenting Orders of the Family Court of Australia dated 10 April 2018 are discharged in their entirety, being orders 1 – 22.
(2)That the children, X and Y born in 2018 live with the Father.
(3)That the Father has sole parental responsibility in respect of the children’s long-term care, welfare and development, such long-term issues to include education, both current and future; religious and cultural upbringing; and health.
(4)That the Father will contact the Mother before making a major long-term decision with respect to the children and attempt to come to an agreement and if an agreement cannot be reached, he will inform her of the decision that he has made.
(5)That X spend time with the Mother as follows:
(a)From after school Friday until 6 PM Sunday, each alternate weekend in school terms.
(b)From after school Friday until 4 PM Saturday, each alternate weekend in the other week, in school terms.
(c)During school holidays, for the time in 3 (a) and 3 (b) and otherwise additional time by mutual agreement but for no more than 3 nights in one block.
(d)On X and Y’s birthday, each year, by way of agreement.
(e)At Christmas time as follows: –
(i)in years ending in an even-number, commencing 2022, from 5 PM Christmas Eve, under 1 PM Christmas Day afternoon; and
(ii)in years ending in odd numbers, commencing 2021, from 1 PM Christmas Day to 12 noon Boxing Day.
(f)At Easter time as follows: –
(i)in years ending in an even-number, commencing 2022, from 9 AM Good Friday, under 4 PM on Easter Saturday; and
(ii)in years ending in an odd number, commencing 2021, from 4 PM on Easter Saturday to 4 PM Easter Monday.
(g)On Mothers Day from 5 PM the night before until 6 PM on Mothers Day.
(h)Other times by mutual agreement.
(6)That the Father is to encourage Y to spend time with her Mother in accordance with order 5 and otherwise Y is to spend time with her Mother by mutual agreement between the parties.
(7)That the Father spend time with the children, if not already in his care, as follows:
(a)At Christmas time as follows: –
(i)In years ending in an odd number, commencing 2021, from 5 PM on Christmas Eve, under 1 PM Christmas Day afternoon; and
(ii)In years ending in an even-number, commencing 2022, from 1 PM Christmas Day to 12 noon Boxing Day.
(b)At Easter time as follows: –
(i)In years ending in an odd number, commencing 2021, from 9 AM Good Friday, until 4 PM on Easter Saturday; and
(ii)In years ending in even-numbered is, commencing 2022, from 4 PM Easter Saturday to 4 PM Easter Monday.
(8)During the periods in time in which the children are with either parent, they are at liberty to speak with the parent with whom they are not spending time: –
(a)By way of telephone, including FaceTime or Skype, between 7 PM and 7:30 PM on each evening; and
(b)Such other times as requested by X and Y.
(9)That each parent shall inform the other of any significant health, safety or welfare issues that occur whilst X and Y are in their care, within 2 hours of the said event taking place.
(10)That both parties are at liberty to attend any of X and Y’s educational and sports events, in addition to all medical and extra-curricular activities.
(11)That both parties will be mindful of an attempt to make both X and Y available to the other parent, should a weekend away or extended family outing be organised by the other parent and assist and facilitate both children to attend this family function.
(12)Neither party shall denigrate the other or their family members in the presence or hearing of X and Y and shall not support any third-party denigrating the other parent or their family in the presence of X and Y.
(13)That the Mother attend upon her general practitioner at least every 2 months and obtain a medical report to be forwarded to the Father setting out the current medication prescribed to the Mother, confirmation or otherwise that the Mother remains compliant with her medication, treatment, recommendations and referrals given to the Mother for any specialist treatment for mental health issues and in relation to her sleep disorder AND that the Mother authorise by these Orders her general medical practitioner or any other treating medical practitioner to provide to the Father a medical report every 2 months and to communicate with the Father any non-compliance or concerns the Mother’s treaters may have in relation to the Mother’s mental health.
(14)That in the event the Mother suffers from a further episode of illness in relation to her mental health issues or her sleep disorder that requires hospitalisation, then the time that she is to spend with the children is to be suspended until such time as the Mother’s treating medical practitioners have provided a written report to the Father that her condition has returned to a satisfactory state.
(15)That in the event that the Father intends to reside other than with his Mother, Ms C, and so have the children reside other than with his Mother, Ms C, the Father must give notice to the Mother no later than 14 days prior to such change of residence of his intention to so change his place of residence and the children’s place of residence and include details of the intended date of such change of residence and of his intended new place of residence for himself and the children.
(16)That the Father must continue his treatment with Dr D, or any other psychiatrist of his choosing, and must inform Dr D, or any other treating psychiatrist, that if he requires hospitalisation, he must inform the Mother within 24 hours of such occurrence, by email at … com.
(17)That Dr D, and any subsequent treating practitioner, of both the Mother, the Father and the children, are to be provided with a copy of these orders, along with the children’s schools.
(18)That the Father will continue to facilitate counselling for the children, as recommended by their psychologist and/or general practitioner, and will give authority for the Mother to obtain information regarding the children’s progress with any treating psychologist or counsellor.
(19)That if participation by the Mother in any sessions is recommended by any psychologist or counsellor treating the children, the Father will facilitate the children’s attendance, including Y, and such attendance will be at the cost of the Mother.
The ICL supported the orders sought by the Father save for her proposed amendments to orders 13 and 15, not opposed by the Father and reflected in his orders as set out above.
Before submissions, I asked the Mother which of the orders sought by the Father she agreed with and which she opposed. The Mother:
(1)Opposed the orders sought by the Father that he have sole parental responsibility;
(2)Opposed that the children live with him, but in the event that an order was made that the children live with the Father, the Mother indicated that she agreed with the Father’s order 5 in relation to the time that she should spend with the children except for:
(a)5(c), which she opposed on the basis that it was inadequate time, and
(b)5(e) on the basis that she sought that the arrangement as to odd and even years be reversed.
(3)Opposed the Father’s order 6 in the sense that if the children were to live with the Father then she sought that order 5 apply to both X and Y;
(4)Agreed with orders 8 to 12 and 17 of the Father’s orders; and
(5)Opposed orders 13 to 16, 18, and 19.
The Mother had no application before the Court and she offered no minute of orders to the Court, despite being given opportunity to make submissions.
The evidence
I have carefully read all of the material relied upon by the Father and the ICL. I do not intend to summarise the evidence in detail in these Reasons as the matter proceeded on an undefended basis.
At the time of the undefended hearing the Father was 49 years of age and the Mother 42 years of age. The Father resides with the children in the paternal grandmother’s home at Suburb Q and the Mother resides in a unit at P School. I take judicial notice that they are virtually adjoining suburbs in the Region R area of Sydney.
The parties commenced cohabitation in 2006, married in 2007, and separated on 30 March 2015. They were divorced on 18 October 2016.
X and Y are the only children of the parents.
The parenting orders made on 10 April 2018 were made by consent, and at the same time the parties had final property settlement orders made by consent between them. Both parties have had mental health issues, the Father’s being somewhat acute in the years prior to the consent orders giving rise to the requirement under those orders that he live with the paternal grandmother for a period of time and maintain his treatment through Dr D, the Mother’s becoming acute very shortly after the consent orders.
X attends P Public School and Y attends S School, both in year 4 at the time of the hearing in 2021. The different school attendance for the twin girls is consequent upon X having been diagnosed with behavioural and learning issues (ADHD) by a paediatrician and S School being unable to provide her with adequate learning assistance. X is on prescribed medication to assist her.
In early 2021 (whether before or after the final parenting consent orders were made is not in the evidence), the Mother began consulting with Dr T of U Clinic, who suggested that the Mother had Borderline Personality Disorder and recommended she seek a referral from a general practitioner to a psychiatrist.
The Mother was referred to Dr V. Mother says in her affidavit that she had a consultation with Dr V on 11 May 2018 and Dr V was of the opinion that the Mother did not have Borderline Personality Disorder.
The Mother wished to seek a further opinion and following a referral by her general practitioner, the Mother consulted Dr H, Consultant Psychiatrist, on 21 May 2018, a month after the final parenting consent orders were made, for assessment of the DBT Program. DBT stands for Dialectical Behaviour Therapy.
Dr H referred the Mother to the DBT Program at the K Clinic. There is no evidence as to whether or not she engaged with the program.
The Mother’s evidence is that Dr H also gave his opinion that she did not have Borderline Personality Disorder. There is nothing in Exhibit A3 to contradict the Mother.
The Father asserts in paragraph 51 of his affidavit that the Mother has been diagnosed with Borderline Personality Disorder, but does not present any evidence to found that assertion.
It seems from Exhibit A4 that the Mother was admitted to the K Clinic on 28 July 2018 for “Mood Disorder”. The Mental Health Pre-Admission Form dated 26 July 2018 indicates “Yes” for major psychiatric diagnosis, history of drug/alcohol abuse, previous diagnosis of mental illness, substance abuse, reduced ability to control behaviour and self-neglect eating, drinking, self-care. It is not clear who provided the information recorded on the form, it may have been the Mother herself or it may have been through Dr H’s practice. Notes on the front of the form refer to “binge on weekends 1/4 bottle of vodka Friday & Saturday nights, every couple of weeks cocaine 1/2 bag $300.”
It is implied in paragraph 9 of the Father’s affidavit that during the period of the Mother’s admission the children were in the care of their paternal aunt, Ms W.
On 11 November 2018 the Mother was admitted to Region R Hospital after a collapse. The Mother was transferred to Z Hospital ICU and underwent surgery for a medical condition. She was in hospital for about four weeks.
On 14 November 2018, the children came into the Father’s care and have remained in his care since that time.
During September and October 2018, the Mother underwent testing for a sleep disorder. Exhibit A1 has a reference to the Mother being reviewed by Dr E on 29 October 2019 in relation to “her excessive daytime hypersomnolence” and medication prescribed for the Mother to assist “in controlling her sleepiness”.
Exhibit A2 also addresses the Mother’s sleep disorder, noting that the Mother was referred to Dr G, Consultant Psychiatrist, “for a psychiatric assessment prior to consideration of stimulant treatment for idiopathic hypersomnolence.” The doctor highly recommends “ongoing psychiatric follow-up”.
The Mother admits in paragraph 21 of her affidavit of 25 October 2019 to using cocaine on a few occasions with a partner with whom she was in a relationship at some time in 2018. This relationship ended in February 2019. The Mother’s use of cocaine is mentioned a few times in the exhibits.
The state of the Mother’s mental health is uncertain. No satisfactory evidence up to the time of the undefended hearing was before the Court, other than Exhibit ICL1, which does not assist to any great degree and does not address the Mother’s sleeping disorder.
The Mother gives evidence in paragraph 18 of her affidavit of 25 October 2019 (information one year and 10 months out of date at the time of the hearing) of using 11 prescription medications, including for sleep disorder, an antidepressant and up to 7 for pain relief.
There is no satisfactory evidence before the Court in relation to the Mother’s physical health, which is a concern in view of her own evidence in her affidavit of her physical health difficulties in 2018 and 2019.
In relation to the Father’s mental health issues, I have evidence from his treating Consultant Psychiatrist, Dr D, on affidavit, the medical report dated 4 August 2021 that is annexed to the affidavit being the same document as Exhibit ICL2.
Dr D indicates in his affidavit that the Father has been a patient of his since 1999. In the annexed medical report Dr D states that the Father’s current diagnoses is a:
Major Depressive Disorder, Recurrent, Mod Severe with melancholic features, in remission
and that his last hospitalisation was in February 2017. [Dr D] reports that the Father:
… has been consistently compliant with taking his medication. He does not experience any side-effects that would impact on his parental capacity.
He states that the Father “has been mentally well since his discharge from hospital in Feb 2017.”
The Father gives evidence in his affidavit of the Mother being non-compliant with agreements made between them in relation to spending time with the children after they came into the Father’s full time care in November 2018.
He deposes that in about August 2020 the Mother “went away” for about 8 weeks and did not see the children all during that time or notify the Father where she was. He also deposes that the Mother would telephone the children outside the times provided for in order 16 of the 10 April 2018 orders (which was not discharged by the interim orders made 14 December 2020), including as late as 10:30 PM. He also gives evidence of the Mother’s unreliability in attending to have time with the children under the interim orders.
The Father says that despite order 4 of the interim orders made on 14 December 2020 he was only provided with one medical report from the Mother’s general practitioner, and that even that was only provided when he indicated to the Mother that he was not going to provide the children to spend time with her unless she complied with the order and provided a report.
In paragraph 26 of his affidavit the Father says:
On 24 May 2021, I was at home and had a call from the Police. They told me that [Ms Bosley] had threatened self-harm during a phone conversation with a mortgage broker and that person had contacted the Police. The Police told me that [Ms Bosley] had refused to answer her door to the Police despite them knocking, so they called the Fire Brigade to break down the door. She was not scheduled but visited by a mental health case worker from [Region R] Hospital …
Y has not spent any time with her Mother since the end of February 2021. The Father asserts in paragraph 33 of his affidavit that Y:
… has expressed a strong wish not spend time with [her Mother]. Each weekend, I have tried to encourage [Y] to go with [X] and her Mother. However she has refused.
Y occasionally speaks to her Mother on the telephone. X has continued to spend time with her Mother on alternate weekends under the interim orders made 14 December 2020.
The Father deposes in paragraph 44 of his affidavit:
Should [Y] wish to start spending time with her Mother again, I will facilitate that at the same time that [X] spends. I will continue to encourage [Y] to see and communicate with her Mother and support her and their relationship.
The Father deposes that he remains living with the paternal grandmother and that he does not intend in the short or medium term to change those arrangements, the home being close to the Mother’s residence and the children’s schools. The children each have their own bedroom. The Mother has paid child support as assessed under the child support legislation since 2019.
At the time of the undefended hearing the assessment was for the Mother to pay $401 per month child support to the Father for the children.
The Father is not in employment and is full-time carer for the children. The Father and the paternal grandmother deliver the children to and collect the children from school each day. The Father arranges for the children to continue their relationship with their maternal grandparents and in paragraph 77 of his affidavit he deposes that the maternal grandparents assist the Father and paternal grandmother with the care of the children, take the children on outings on weekends, have the children for sleepovers, take the children on holidays and assist with collection from school if needed.
The children have been attending a psychologist at AB Centre psychology since 2019. The Mother is aware of the children’s attendance with the psychologist.
The Father gives evidence that he finds great difficulty in communicating with the Mother and that he has expressed a wish that their communication be confined to text messages. He deposes that every time he seeks to discuss something with the Mother she becomes argumentative and abusive towards him.
The paternal grandmother confirms in her affidavit that the Father has lived at her home since separating from the Mother in March 2015 and that from then until November 2018 the Father spend time with the children at her home. She confirms that the children have lived in the home full-time since late 2018 when the Mother was hospitalised. Importantly, she deposes in paragraph 7:
I have no intention of changing the living arrangements. [Mr Bosley] and the children are welcome to continue to stay at my home. I enjoy having them with me.
She deposes in paragraph 20:
I have witnessed [Mr Bosley] regularly attend with his psychiatrist and regularly take his medication. I have not observed any behaviour to make me concerned that he is not taking his medication or that he has any issues with his mental health.
In the Child Dispute Conference Memorandum to Court (Exhibit A5) the family consultant notes under “Future directions”:
•The parents appear to agree that the children should remained living with the Father but the Mother seeks some extensions of a few hours to the term arrangements. They both seem to report that the girls are each progressing well with their psychologist and the individual schools.
•Given the changes in their care that the children have experienced, stability and consistency should be prioritised for them .
•…
•It is positive that the children are attending a professional for counselling …
The family consultant also notes in the Memorandum under the heading “Co-parenting relationship”:
There appears to be a long history of a poor co-parenting relationship with little direct communication between the parents, especially since late 2018/early 2019.
The law
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act.
The Court must give attention to section 60B of the Act that sets out the objects of Part IV of the Act relating to children. Those objects inform the making of parenting orders. That section also contains the principles behind those objects.
In this matter I have considered those objects and the principles behind those objects.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper. The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[1]
[1] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings.
Section 61DA 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 in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[2]
[2] Family Law Act 1975 (Cth) s 61DA(4).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DA, the Court must consider:
(1)Whether the child spending equal time with each parent would be in the best interest of the child;[3] and
(2)Whether the child spending equal time with each of the parents is reasonably practicable.[4]
[3] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[4] Family Law Act 1975 (Cth) s 65DAA(1)(b).
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[5]
[5] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of their parents, then the Court must consider whether the child spending substantial and significant time with each of their parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is yes, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child’s daily routine.
If the Court does not make an order for the child to spend substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper in the best interests of the child, per section 65D.
As to what is ‘proper’ and how the Court’s discretion is to be exercised I note the comments of the Full Court of the Family Court of Australia in the decision of Grella & Jamieson [2017] FamCAFC 21:
A discretionary judgment concerning the parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[6]
[6] Grella & Jamieson [2017] FamCAFC 21, [18].
There is much jurisprudence on the issue of risk in parenting proceedings. The jurisprudence may be simplified by saying that the task of the Court where risks are asserted is not necessarily to make a finding as to whether the actions and events asserted have actually happened or have definitely not happened, as such a finding is rarely open to the Court on the evidence and most particularly in parenting proceedings replete with contested evidence.
Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
(1)Assess whether that risk is an acceptable risk or an unacceptable risk;
(2)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
(3)Decide what orders are proper in all the circumstances in the best interests of the child.
Detailed exposition of the treatment of risk in parenting matters can be found in the decision of the High Court in M & M (1988) 166 CLR 69 and the decisions of the Full Court of the Family Court of Australia in A & A & The Child Representative [1998] FamCA 25 (especially at 3.23 to 3.25), and Napier & Hepburn [2006] FamCA 1316, Johnson & Page [2007] FamCA 1235. I have had recourse to each of these authorities.
Where there is contested evidence, the Court is not always able to make a finding, but must do what can be done on the basis of agreed facts and any contested evidence where there is sufficient corroboration on one side to enable a finding. This is to enable the Court to perform its function, and resolve any issues with the best interests of the child as the paramount consideration, and make whatever orders are then considered proper.
The assessment of risk in parenting proceedings, and in particular the concept of an ‘unacceptable risk’ is based on principles developed by the courts over the years, finding a high water mark and neatest exposition in the High Court in M v M (1988) 166 CLR 69. There, when discussing allegations of sexual abuse, the High Court said:
[22] In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 ...
[23] No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless …
[24] In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access ...
[25] … In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Johnson & Page [2007] FamCA 1235 at [72], the Full Court agreed that reference to the Evidence Act 1995 (Cth) rather than the Briginshaw civil standard of proof,[7] is the appropriate standard, particularly having regard to section 140(2)(c) of that Act.
[7] Briginshaw v Briginshaw (1938) 60 CLR 336.
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page at [65] is W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892 where the Full Court noted at [111]:
[111] … We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists …
When discussing a determination of unacceptable risk, the Full Court cited with approval the following at [68]:
[68] In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.
In Harridge and Anor & Harridge and Anor [2010] FamCA 445, Murphy J provided a useful guide for judges in determining matters where unacceptable risk is raised:
[71] Frequently, (I would respectfully venture, too frequently) “risk” is referred to as an all-embracing term, a “general” finding of which can (purportedly) be seen to have some form of “ipso facto consequences” for the orders made. Yet, “risk” is, without more, but a convenient description; orders must, surely, address its constituent components which must, axiomatically, vary according to the circumstances of each case.
[72] In that respect, it is both interesting and instructive to refer to what has been said about this issue first by the Honourable John Fogarty AM, and, secondly, by an English author, (the latter qualified as both a psychiatrist and a barrister.)
[73] The latter said:
Risk assessment in any situation involves, in essence, the asking of the following questions:
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
(B. Mahendra, 'Psychiatric Risk Assessment in Family and Child Law' (2008) 38 Family Law 569).
[74] Mr Fogarty, writing in the Australian Journal of Family Law said this (20 AJFL 249 at 254-5):
... the reality is that all courts deal with issues of "risk" and degrees of risk (however described) in various situations and that concept is increasingly used in legislation.
Risk is difficult to define in a way which is not ultimately circular. But it is an inevitable part of life at all its levels. It is inherently risky to breathe, eat, drink, walk, drive, work, invest and play. The world is full of different risks and consequences and everyone is prone to dangers. We confront varying levels of risk everyday. People frequently face potentially dangerous situations; not many live at home in complete isolation to avoid getting in harms way. Most people try to avoid what they perceive to be risk; some willingly take on high risk activities.
Risk involves two component; the degree of "likelihood" of the happening of an event, and the possible consequences (good or bad) if it does [cases and citations omitted]. Individuals in their assessment of some risks may focus more on one than the other of these components.
But at some point it usually becomes necessary for that person to make a judgment of the risk and whether it can/should be taken. Where the risk relates to a third person to whom one owes a responsibility, it is likely in the nature of things that the estimate will be conservative.
Risks are relative and usually involve trade-offs. Crossing the road with oncoming traffic to catch the last connection to the airport involves the risk of being hit by a car or the risk of missing the plane. Very much a balancing exercise of facts, experience and intuition, but essentially which risk carries the greater detriment (usually the car).
Then there is the common experience of a mother watching her child cross a road to go to school. The risk is seen as greater (although it may not be) because the consequences may be death or injury to the child and because the responsibilities of the mother will be seen by her as greater than for herself or another adult ....
At times the courts and the legislature have attempted to give an indication of the content or quality of the risk -- otherwise “risk” may mean any risk, however small or unlikely. Hence the use of adjectives such as “serious”, “grave”, “real”, “appreciable” and “unacceptable”.
[75] I respectfully agree, as I also do with Mr Fogarty's statement (which also has echoes in the English author's statement earlier quoted) that:
... unacceptable risk in the High Court's formulation [in M v M (1988) 166 CLR 69] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is "acceptable" when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of "benefit to the child". It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the bests interests of the child and protection from risk
In Napier & Hepburn, the Full Court emphasised that it is not for the Court to find a solution which will eliminate any chance of serious harm. Rather, it is to balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy relationship between a parent and a child not being permitted to prosper.
Is there benefit to the child of having a meaningful relationship with both parents?
In Mazorski & Albright[2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed:
[26] 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”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, 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 quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, at paragraph 121 the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders [2007] FamCA 102 (an appeal involving an application by a mother to relocate) agreed with Dessau J’s judgment in M & S [2007] FLC 93-313 and said at paragraph 33:
[33] The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
and later, at paragraph 36 said:
[36] It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
In Tait & Densmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
[170] … 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. …
Strictly speaking, it is necessary to examine as a matter of evidence what benefits do accrue to the child in having a meaningful relationship with both parents. At first blush one might think that the concept that there is a benefit for that there are benefits to a child in having a meaningful relationship with both of the child’s parents, may be self-evident, that it is common knowledge or not reasonably open to question and therefore can be accepted under section 144 of the Evidence Act 1995 (Cth).
However, that is not the case. In KB & TC [2005] FamCA 458 at paragraph [87] the Full Court of the Family Court of Australia held that “the benefit to be derived by child from sibling relationships is not a matter which could be the subject of judicial notice within section 144 of the Evidence Act 1995 (Cth)”, a concept that I find sufficiently closely analogous to the benefit to be derived by child from having a meaningful relationship with both parents.
In McGregor & McGregor [2012] FamCAFC 69 at paragraph [74] the Full Court held that:
It is not open to a judge to use section 144 of the Evidence Act to “inform” him or herself of matters in respect of which reasonable minds might differ.
Might reasonable minds differ as to whether there is benefit to a child of having a meaningful relationship with both parents? This is not the place.
Section 60CC – the Primary Considerations
The primary considerations are the benefit to the children of having a meaningful relationship with both of their parents, and any need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the very broadest sense it can be said that there is benefit to the children in having a meaningful relationship with both parents so long as they are not exposed to a risk or risks that reduce or negate that benefit.
The Mother has a range of health issues, both in relation to physical health and mental health. There is no adequate evidence before the Court in relation to her mental health issues or her hypersomnolence.
The real basis of risk in this case is that there is a risk to the children associated with being in the Mothers care if she is at that time detrimentally affected by mental health or physical health issues that impact upon her ability to properly care for her now 11 year old daughters, and the extent of that risk cannot be assessed due to the Mother’s failure to engage with the proceedings other than appearing on each occasion.
Other than her affidavit of 25 October 2019, she provides no evidence to the Court.
Despite being before the Court on each occasion when the orders were made, she has failed to comply with repeated orders for her to engage with the proceedings by filing a Response document setting out the orders that she seeks and her evidence.
In those circumstances and on careful consideration of all of the evidence that is available to the Court, I find that the orders proposed by the Father appropriately address the risk, so far as it is known, and that it is in the children’s best interest to live with their Father and to spend time with their Mother as proposed by the Father and the ICL, subject to orders 13 and 14 proposed by the Father that address the Mothers health issues and orders 15 and 16 proposed by the Father that address the Father’s health issues.
I am very conscious that Y has not been spending any time with her Mother since the end of February 2021, and that makes it all the more concerning that the Mother has not seen fit to engage with the proceedings by complying with the orders for filing documents so as to put before the Court her alternate proposal and some evidence.
Orders 18 and 19 as sought by the Father and supported by the ICL address ongoing counselling for the children and it was submitted by Ms Jamieson on behalf the Father that it is through those orders that attempts may be made to re-establish the relationship between the Mother and Y.
This family has been involved with the Court since June 2015 when the twins were 4 years old. They are now 11 years old. They need to get out of the Court.
On the basis of my consideration of the primary considerations, in the light of such evidence as is available to the Court, I find that the orders proposed by the Father and supported by the ICL, with the changes to the Father’s orders 13 and 15 proposed by the ICL, are orders proper to be made in the best interest of X and Y, with their interests as the paramount consideration.
Section 60CC – The Additional Considerations as relevant.
Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views.
The children were not interviewed for the Child Dispute Conference Memorandum to Court (Exhibit A5) and so there views were not canvassed by the family consultant. However, Ms Tin had interviewed the children prior to the undefended hearing and she advised the court during her submissions (and I note the provisions of subsection 68LA(7) of the Act) that X enjoys the time she spends with her Mother, but that Y expressed an extreme desire not to see her Mother and told the ICL that she gets very scared when she sees her Mother – that submission by the ICL relaying Y’s views pairing in with the evidence of the Father and the paternal grandmother in their affidavits.
At the time of the hearing, the girls were 10 years and 2 months of age. They are past what is known as the cognitive age and their views should be given some weight by the Court.
For Y, so far as I am able to ascertain on the evidence before the Court, her view, tragically, has been framed by her lived experience with her Mother. It is to be hoped that the continuation of the children’s counselling as proposed in the Father’s orders and strongly supported by the ICL can address the repair of the relationship between Y and her Mother so that she has her Mother’s comfort and guidance as she moves to puberty and her teenage years.
The nature of the relationship of the children with each of the children’s parents and other persons including grandparents.
Both children have a close and loving relationship with their Father and he is their primary carer and has been since November 2018. Prior to 2018, the Mother was the primary carer for the children. X seems to have maintained her close and loving relationship with her Mother and I find that to be the case despite some of the evidence in the affidavits of the Father and the paternal grandmother throwing some doubt towards that. Unfortunately, Y’s relationship with her Mother has broken down and there is no mechanism offered to the Court other than the continuation of the children’s counselling to repair that relationship. It may have been of immense benefit in formulating some plan in that direction if the Mother had engage properly with the proceedings.
I find that the children have an ongoing and excellent relationship with their paternal grandmother and their maternal grandparents, the latter through the positive actions of their Father in continuing to foster that relationship despite the state of relations between the parents and what appears on the evidence to have been a breakdown in the relationship between the Mother and her parents.
The extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children, and to communicate with the children.
On the Father’s evidence, the Mother has not taken all of the opportunities available to her to spend time with and communicate with the children. The Mother has had difficulties, but in the absence of any appropriate evidence from her for the assistance of the Court on hearing, I must rely on the evidence available and find that the Mother has failed to take all available opportunities to participate in making decisions about major long-term issues for the children, to spend time with them and to communicate with them.
Unfortunately, it would seem that when she has taken advantage of opportunity to spend time with the children and to communicate with them by telephone calls, her behaviour has caused Y to all but break off her relationship with her Mother.
The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parents obligations to maintain the children.
Each of the parents has fulfilled their obligation to maintain the children.
The likely effect of any change in the children circumstances, including the likely effect on the children of any separation from either of their parents or maternal grandmother.
No change in the children’s circumstances is proposed in the application before the Court by the Father other than a change to the order in relation to X spending time with her Mother (and Y joining in if she chooses, which is the real meaning of “by mutual agreement between the parties’) in that the interim order made after contested interim hearing on 14 December 2020 provides for the children to spend each alternate weekend from 5:00PM on Friday until 7:00PM on Sunday during term time with their Mother and periods of a week at a time with their Mother during school holidays, whereas the Father’s proposed orders are that X (and Y she chooses) spend time each weekend with her Mother, being from after school Friday until 6:00PM on Sunday on one weekend and from after school on Friday until 4:00PM on Saturday on the other weekend, on a fortnightly basis during school term and for time during school holidays of no more than three nights in one block.
On the evidence available, it is not possible to gauge the likely effect of the changes on the children by the increase of their term time weekend time with their Mother and the decrease of their school holiday time.
Nevertheless, I find in all the circumstances that the orders proposed by the Father and supported by the ICL are the orders proper to be made in the best interests of the children with the children’s interests as the paramount consideration.
The practical difficulty and expense of the children spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
There is no difficulty or expense in either child spending time and communicating with the Mother, the Mother and the Father living in close proximity.
The capacity of each of the children’s parents to provide for the needs of the children, including their emotional and intellectual needs.
On the basis of all of the evidence available to me I must find that the Father has demonstrated adequate parenting capacity to provide for the children’s needs, including their emotional and intellectual needs, and I must unfortunately find that the Mother as demonstrated a lack of capacity to provide for the children’s needs. The Mother’s failure to engage with these proceedings by filing Response and evidence is itself a demonstration of a serious lack of parenting capacity, a serious lack of motivation to involve herself in these proceedings in such a way that all appropriate evidence is before the court to assist the court in determining what parenting arrangements are best for X and Y.
The breach in the relationship between Y and her Mother is demonstrative of a lack of parenting capacity on the part of the Mother where there is an absence of any evidence whatsoever of such breach being caused by anything other than the Mother’s behaviour.
The Mother sought to assert in her verbal submissions she made at the undefended hearing that there were other causes, but without an evidentiary base, those submissions do not assist the Court.
During the Mother’s submissions, I said to her words to this effect:
You assert the children are at risk with the Father, but you have taken no steps in the past three years to seek to remove the children from his day-to-day care and into your care. How do you explain that?
The Mother’s response was that the safety valve has always been that the paternal grandmother was present and that she had been concentrating on getting out of financial difficulties “to save my unit for my daughters”.
The maturity, sex, lifestyle and background, including lifestyle, culture and traditions, of the children and of either of the children’s parents, and any other relevant characteristics of the children that the court thinks are relevant.
I do not find that this consideration assists in determining what orders are proper to be made for the children with the children’s interests as the paramount consideration.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents.
On all of the evidence, the Father has demonstrated a proper attitude to the responsibilities of parenthood, whilst the Mother has failed to demonstrate a proper attitude to the responsibilities of parenthood.
The Father took the children into his care when the Mother was in medical difficulties and unable to care for them and, it would seem, that the Mother’s concentration has been on her own difficulties, including financial difficulties, rather than the needs of the children.
The very tragic result of that is the state of the relationship between Y and her Mother.
Any family violence involving the child or a member of the child's family.
Family violence is not a factor in this matter.
Parental Responsibility
The presumption set out in section 61DA that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for them applies in this matter.
However, I consider that the presumption has been rebutted by the evidence that has satisfied me that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them, as was the case under the consent order made on 10 April 2018, because there is no co-parenting relationship between the Mother and the Father and there is no evidence to contradict that of the Father that he finds great difficulty in communicating with the Mother and that when he has attempted to communicate directly with the Mother in relation to matters affecting the children’s welfare the discussions have been stymied by the Mother’s aggressive and argumentative attitude.
The Father seeks an order that he have sole parental responsibility for the children and the ICL supports that order.
I find that the presumption has been rebutted by all of the evidence in this matter and I will make an order that the Father have sole parental responsibility for the children.
I will make the order sought by the Father and supported by the ICL that there is a positive obligation on him contact the Mother before making a major long-term decision with respect to either of the children and to attempt to come to an agreement and in the event that agreement cannot be reached he will make the decision and inform the Mother once a decision has been made.
I find that such orders will reduce the likelihood of the children or either of them being exposed to parental conflict and doing more damage.
As the order that the parents have equal shared parental responsibility for the children made by consent on 10 April 2018 will be discharged, and an order will be made for the Father to have sole parental responsibility for the children, I am not required to consider the matters in section 65DAA of the Act relating to the children spending equal time with each of their parents or the children spending substantial and significant time with each of their parents.
What parenting orders are property be made with the best interests of the children as the paramount consideration?
Based upon my consideration of the primary and additional considerations in section 60CC and the findings I have made, I consider that all of the orders proposed by the Father are the orders appropriate to be made in the best interests of the children, with the alteration to his proposed orders 13 and 15 as set out in the ICL’s Case Outline document.
During verbal submissions, I canvassed with each of the parties and the ICL the possibility of orders outside the ambit of those proposed by the Father and approved by the ICL being made in relation to family therapy, particularly with a view to repair of the relationship between Y and the Mother, but such an order runs up against the financial difficulty of either parent, or indeed both of them, being able to facilitate such an order.
I make the orders as set out at the start of these Reasons.
I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 12 September 2022
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