Broadley & Larch
[2022] FedCFamC2F 631
•18 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Broadley & Larch [2022] FedCFamC2F 631
File number(s): MLC 4701 of 2020 Judgment of: JUDGE HARLAND Date of judgment: 18 May 2022 Catchwords: FAMILY LAW – parenting – competing live with applications –parental responsibility – parents’ poor communication –needs of the children –whether or not needs have been neglected. Legislation: Family Law Act 1975 (Cth) pt VII, ss 60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA. Cases cited: Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] 240 CLR 461
Waterford & Waterford [2013] FamCA 33
American Psychiatric Association Autism Diagnosis Criteria: DSM-5, 5th edition Diagnosis and Statistical Manual of Mental Disorder
Division: Division 2 Family Law Number of paragraphs: 190 Date of last submission/s: 1 April 2022 Date of hearing: 31 January 2022, 1, 2 and 18 February 2022, 11 March 2022. Place: Melbourne Counsel for the Applicant: Ms Jardine Counsel for the Respondent: Ms Daly Solicitor for the Applicant: Hope Earle Lawyers Solicitor for the Respondent: Aboriginal Family Violence Prevention & Legal Service ORDERS
MLC 4701 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BROADLEY
Applicant
AND: MS LARCH
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1.The mother and father exercise equal shared parental responsibility for the children X born in 2013, Y born in 2015 and Z born in 2019
2.The children live with the mother.
3.The children spend time with the father as follows:
(a)During the Victorian Gazetted School Term 2 and School Term 3 in 2022:
(i)Each Wednesday from the conclusion of school/daycare, or 3.30pm if a non-school day, until the commencement of school the following day, or 9.00am if a non-school day.
(ii)Each alternate weekend from the conclusion of school/daycare on Friday, or 3.30pm if a non-school day, until Sunday evening at 6.00pm.
(b)From the commencement of the Victorian Gazetted School Term 4 in 2022:
(i)Each Wednesday from the conclusion of school/daycare, or 3.30pm if a non-school day, until the commencement of school the following day, or 9.00am if a non-school day.
(ii)Each alternate weekend from the conclusion of school/daycare on Friday, or 3.30pm if a non-school day, until the commencement of school Monday morning, or 9.00am if a non-school day.
4.During the Victorian Gazetted Term School Holidays in 2022:
(a)X and Y spend time with the father for the second half;
(b)Z spend time with the father for the first four nights X and Y spend time during the second week as per (4)(a), returning to the mother at 5.00pm on the fifth day.
5.Commencing from the Term 1 School Holidays in 2023, the children spend time with the parties during the Victorian Gazetted Term School Holidays, on an equal basis as agreed between the parties in writing, and failing agreement as follows:
(a)From the Term 1 School Holidays 2023 and each odd year thereafter:
(i)For the second half of the school holidays with the Father.
(b)From the Term 1 School Holidays in 2024 and each even year thereafter:
(i)For the first half of the school holidays with the Father.
6.The children spend time with the parties during the Victorian Gazetted Summer School Holidays on an equal basis as agreed between the parties in writing, and failing agreement as follows:
(a)In year 2022 and each even year thereafter:
(i)For the first week of the school holidays with the Mother and each alternate week thereafter; and
(ii)For the second week of the school holidays with the Father and each alternate week thereafter.
With changeover to occur weekly at 6.00pm Friday.
(b)In year 2023 and each odd year thereafter:
(i)For the first week of the school holidays with the Father and each alternate week thereafter; and
(ii)For the second week of the school holidays with the Mother and each alternate week thereafter.
With changeover to occur weekly at 6.00pm Friday.
7.For all the children’s birthdays, all children will spend time with the parent with whom they are not living or otherwise spending time, between 2.00 pm and 6.00 pm, unless the birthday is on a school day, in which case the time will commence at 3.30 pm and conclude at 6.00 pm.
8.For Mother’s Day and Father’s Day, in the event that the children are not with the relevant parent, the children will spend time with the relevant parent from 10.00am to 6.00 pm.
9.The parents are to facilitate a child to call the other parent whose care they are not currently in at the child’s request at reasonable times.
10.Changeovers that do not occur at the children’s school or childcare are to occur at B Park located at C Street, Suburb D or as otherwise agreed in writing.
11.Neither party will make any abusive, insulting rebuking or denigrating remarks or discuss the proceedings or any disputes between the parties in the presence or hearing of any of the children, nor allow any other party to do so.
12.Neither party will use physical discipline on any of the children, nor expose any of the children to family violence and will not allow any other person to do any of these things.
13.The parties will use an agreed parenting app to exchange all non-urgent information, including but not limited to the children’s routine and medical appointments.
14.The parties are to agree on a parenting app within seven days of the date of these orders.
15.In the event the parties are unable to agree on a parenting app, within a further seven days of the date in order 14, the father shall nominate three parenting apps. Within a further seven days, the mother shall choose one and the parents shall use that app.
16.Each party will communicate to the other party: the bedtime routines, the medical requirements and the dietary requirements of each child and will follow the recommendations of any health or educational professional in relation to each child.
17.Neither party will use any of the children to try to make any amendments to the arrangements set out in these Orders. In the event any child requests that they do so, the party will decline to comply with that request.
18.Each party will, as soon as practicable inform the other party of all medical, psychological and educational assessments and treatments provided to any of the children while the children are in their care.
19.In the event any of the children suffers from serious illness or injury when in one of the parent’s care. That parent will notify the other parent as soon as is practicable and will give permission to the child’s treating health professional to communicate with the other parent.
20.Each party is permitted to attend all school functions to which parents are invited. Each party may obtain school newsletters, photos and the like at his or her expense.
21.Each party will notify the other party within 24 hours of any change of address, phone number or email address.
22.Each party is at liberty to provide a copy of these orders and reasons to any family counsellor or other medical professional they engage.
AND THE COURT NOTES THAT:
A.The parties will ensure that the children attend and engage in appropriate Aboriginal heritage activities as organised by VACCA and other Aboriginal organisations.
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 Broadley & Larch has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
X, Y and Z’s parents cannot agree on the best living arrangements for them. Both parents raise concerns about the other. X, born in 2013 is currently eight years old, Y, born in 2015 is currently seven years old and Z, born in 2019 is three years old.
The parties commenced a relationship in 2010 and separated in February 2019, however remained living under the same roof. The father moved into the home of his aunt in March 2019.
The father has re-partnered and lives in a three-bedroom home with his partner, Ms E, and their baby daughter F, born in 2021.
The mother lives with the children in a three-bedroom house approximately five minutes’ drive from the father’s home.
Interim consent orders made on 4 December 2020 ordered for the children to spend time with the father as follows:
(1)For X and Y:
(a)In week 1:
(i)During each school term period from Wednesday 6.00pm until commencement of school on Thursday.
(ii)From 6.00 pm on Friday until 6.00 pm Sunday.
(b)In week 2:
(i)During each school term period from Wednesday 6.00pm until commencement of school on Thursday.
(2)For Z:
(a)For a period of six weeks, every second Saturday from 10.00am until 2.00pm;
(b)Then graduating to every second Saturday from 10.00am until 5.00pm.
Further interim consent orders made on 21 May 2021 again increased Z’s time on a graduated cycle over a course of five months as follows:
(a)until the end of July 2021, each alternate weekend from 10.00am to 5.00pm on Saturday and Sunday;
(b)commencing on the first usual alternate weekend cycle in August from 10.00am Saturday until 10.00am Sunday;
(c)commencing on the first usual alternate weekend cycle in October from 10.00am Saturday to 2.00pm Sunday;
(d)commencing on the first usual alternate weekend cycle in November from 10.00am Saturday to 6.00pm Sunday;
(e)each Wednesday evening from 6.00pm to 7.00pm (so as to coincide with the two elder siblings’ time with the Father) and, in the event that the Father can otherwise commence such time earlier with practicable notice to the Mother, then from 4.00pm onwards to 7.00pm;
(f)at such other or further times, and arrangements for same, as may be agreed by the parties in writing.
Accordingly, the current spend time arrangements for the children with the father are:
(1)Each alternate Friday 6.00pm to Sunday 6.00pm for X and Y;
(2)Each alternate Saturday 10.00am to 6.00pm Sunday for Z;
(3)Every Wednesday 6.00pm to 9.00am Thursday for X and Y;
(4)Every Wednesday 6.00pm to 7.00pm for Z.
DOCUMENTS RELIED UPON
My trial directions are very clear. The parties are to file one consolidated trial affidavit. I require the parties to file affidavits simultaneously in order to avoid parties filing affidavits that respond to affidavits not in evidence. The mother’s trial affidavit filed 13 January 2022 refers to filing the affidavit in compliance with the court orders made on 4 December 2020 (which include my trial directions). Her affidavit does not comply with my directions. She seeks to refer to and reiterate the matters in her 3 previous affidavits. She also replies to an affidavit the father filed on 1 December 2021 filed in support of his Amended Initiating Application filed on 12 January 2022. That affidavit is not in evidence before me. Further, the mother’s trial affidavit at times read more like pleadings. Given this I granted leave to the mother to rely on earlier affidavits in addition to her trial affidavit but required her to identify the particular paragraphs she sought to rely on.
The father relied upon the following documents:
(1)Affidavit of his filed on 12 January 2022; and
(2)Amended Initiating Application filed on 12 January 2022.
The mother relied upon the following documents:
(1)Paragraphs 8 to 43 of her affidavit filed on 13 July 2020;
(2)Paragraphs 8 and 9 of her affidavit filed on 30 November 2021;
(3)Paragraph 20 of her affidavit filed on 13 May 2021;
(4)The whole of her Affidavit filed on 13 January 2022; and
(5)Amended Response to Initiating Application filed on 13 January 2022.
Both parties relied on the Child Inclusive Conference Memorandum dated 30 October 2020 and the family report prepared by Ms G dated 29 October 2021.
ISSUES IN DISPUTE
In his Amended Initiating Application filed 12 January 2022, the father seeks that the three children live in his primary care and spend time with the mother on alternate weekends from after school Friday until before school on Monday and each Wednesday from after school until before school during school terms and for half school holidays.
Ultimately the father’s case was that the mother has neglected the children’s educational and medical needs and that he is better placed to address those needs. The father also complains that the mother has withheld the children from him on several occasions and is not willing or able to facilitate his relationship with children.
During the course of the trial, it became clear that the issues of most concern to me were not those identified by the parties. For example, with respect to parental responsibility, it was apparent that the mother had not communicated with the father at all about several important issues, she appeared to form the view, without even trying, that she would not be able to communicate with him. She was keen to refer to his having Asperger’s as a reason for this.
My impression from both the written material and the running of the trial is that the parties’ lawyers did not engage in any reality testing with the parties. To her credit, after listening to observations from me, the mother changed her position and agreed the parties should exercise equal shared parental responsibility. To both their credit, the parties made serious attempts to resolve the case however they were ultimately unable to do so.
FAMILY VIOLENCE
Both parties make allegations of family violence against the other.
The mother denies being controlling of the father during their relationship. She claims that during the relationship, the father was frequently verbally and emotionally abusive towards her and isolated her from her family. She claims the father often yelled abuse at her and would control her behaviour.
The mother does not provide any specific evidence. The mother does say that there was family violence during the relationship for which both are responsible for. She says it worsened particularly after the children were born as the father’s need for certainty and routine could not be adhered to. The children were not planned and the father refers to the difficulties after the children were born. Caring for three young children is challenging for any parent.
The father says the mother became hostile towards him in June 2019 once she found out he was dating and from June to August 2019 his time with the children became more intermittent.
Things escalated in August 2019 when the mother sent hostile text messages, threatening to kill him and to damage his partner’s property. The father says the mother had driven past his partner’s home and saw his car. He says that later that night or a day or two later, the mother called him and abused him for about 15 minutes, threatening him, his partner Ms E and threatening to damage his car and his property. She continued the abusive text messages, and, afraid for his and his partner’s safety the father contacted the police and the police took out an intervention order for his and the children’s protection.
The father says that about two weeks later, X and Y were spending overnight with him and said they did not want to return home to their mother. At the changeover at Suburb H Police Station the father proposed that the children spend more time with him in accordance with their wishes. The father complains that the mother became aggressive and they argued, and both went into the police station and made cross reports against each other and the police questioned X and Y, who indicated they want to live with him, and the police told him to take the children home.
The father says he was served with an intervention order naming the mother and the children as protected persons and that this was based on allegations of historical family violence, and that as a result of this the children were placed back in the mother’s care. The father says this was a full, no-contact intervention order, which he successfully sought to have varied in October 2019 so that he could make parenting arrangements with the mother.
The father says that from the time Z was about two months old until she was about seven months old the mother would not let him see her at all, until they went to mediation.
CARE FOR THE CHILDREN PRIOR TO SEPARATION
The father claims that the parties cared equally for the children up until September 2017 and that from September 2017 and to the end of January 2019 he was the children’s carer, as he suffered a workplace injury damaging his spine leaving him unable to work for just over a year. He resumed light duties at work in January 2019.
I am satisfied that the father has downplayed the mother’s involvement in the children’s care and has overestimated his own, as it is not simply a matter of who is present in the home. His physical injuries would have severely limited what he could do. Certainly I accept that he was able to be more available during that period.
The father says that after moving out of the home he continued to see the children regularly and take the children to and from school. The father says the separation was mutual, in contrast to what the mother claims, and denies the mother’s allegations that he started dating before they separated. The father says he did not start dating until after Z was born.
WITHHOLDING THE CHILDREN
The father complains that the mother has withheld the children from him on four occasions without good reason being:
(6)August to October 2019;
(7)October to December 2019;
(8)March to July 2020;
(9)October to December 2021.
The father says that he did not see the children from August until October 2019 after the mother took out a full no contact IVO against him which included the children as protected persons. He applied to have the IVO varied so he could make parenting arrangements with the mother.
The father then saw the children for 4 hours in October 2019. The mother then refused further time and the father did not see the children again until December 2019 when the parents entered into a parenting plan after attending family dispute resolution.
The mother could not recall stopping the father’s time in 2019. That period predates the proceedings. The mother was a poor historian and was at some points vague in her answers. It is clear that the parties were unable to agree on spend time with arrangements early after they separated. This would have been a turbulent time for both parents. It was also during this period that the mother sent threatening messages to the father. I prefer the father’s evidence with respect to this period.
The older two children started spending overnights with the father in February 2020. He had two overnight visits before the mother stopped the father’s time again in March 2020. The mother says she sought advice from her lawyer about the impact of the pandemic. She did not communicate with the father that she was stopping his time. The parties exchanged text messages in late March 2020 where the mother refers to keeping the children home because of the virus.
The mother denies that the father asked to FaceTime with the children. She says if he had asked she would have arranged it. Of course she could have arranged it on her own initiative. The older children in particular would have been confused about why they were not seeing their father. It is of concern that it did not seemly occur to the mother that the children should at least maintain video contact with him. I accept that at the beginning of the pandemic in March 2020 there was widespread concern and uncertainty about how infectious the virus was. This explains the mother withholding the children initially but does not explain her withholding the children for over 3 months until the father’s application was brought to the Court in July 2020.
The father started seeing the children again in July 2020 when the parties entered into consent orders. The parties agreed to further interim consent orders on 4 December 2020.
The mother withheld the children again in mid-October 2021. The timing is concerning as the family report interviews had just taken place on 19 October 2021. The mother’s lawyers wrote to the father on 22 October 2021 raising the following complaints:
·X was in bed on 7 October and overheard the father saying “I wish you were dead” whilst standing in her bedroom doorway.
·The father repeatedly says “shut up you fat bitch” and tells Y to call his mother “fat guts”.
·The father smacked Z during the week of 15 and 16 August 2021.
In her affidavit filed 13 January 2022, the mother claims that X did not mention what allegedly occurred in October until after her appointment with the family consultant. I have some difficulty accepting this. She does not provide any context surrounding X’s alleged disclosure on 21 October 2021. At paragraph 16 of her affidavit she states, “I am not alleging that the Father planned to take any action to fulfil his “wish”, but that he should utter such a wish in her presence appals me”. It is notable that the mother goes on to complain about Ms G’s attitude towards her at interview and apparently accepting the father’s statements as true whilst emphasising the mother’s anxiety and also referring to the mother as having depression. This was not put to Ms G when she was cross examined.
The mother claims that on the basis of those issue the mother’s lawyers advised that the mother had no option but to suspend the father’s time with the children pending further investigation. I am greatly concerned that again the mother withheld the children from the father for several months. Again the father did not spend time with the children until the matter came back before the Court in December 2021.
The father denies those allegations and points out that X did not stay overnight on Wednesday 6 October 2021. Furthermore, the letter from her lawyers does not address any of the concerns the father raised in his September email to them. It is difficult to see how the mother could justify suspending the father’s time based on an allegation that he smacked Z several months before.
On 17 November 2021 the father was served with an application and summons and on 24 November 2021 the interim IVO was reinstated.
The mother was cross-examined about paragraph 64 of the family report where the family consultant refers to the mother’s complaints relating to the safety and wellbeing of the children in their father’s care. Significantly, the mother conceded when cross-examined that she did not tell the family consultant about X’s hearing her father say “I wish you were dead” and the other allegations made in that letter.
The mother conceded that she did not put in those complaints with respect to the father’s treatment of the children about food, allegedly twisting X’s arm and Y seeing the father and his partner engaging in sexual activities.
The mother’s counsel suggested to the mother that Y could have been exposed to sexual activities through watching Grand Theft Auto on YouTube. The mother says Y has access to a kids YouTube which is for his age group.
These allegations are other examples of the parents taking what the children say on face value and interpreting it as reflecting negatively on the other parent. Both parents are guilty of this. The children would be aware that their parents do not like each other. Children of their age will tell their parents what they think they want to hear. Rather than the parents stepping back and considering this possibility, both parents continue to focus on blaming the other. They continue to expose the children to this high level of conflict.
I am troubled by the mother’s history of withholding the children particularly, in 2020 and 2021 and the fact that she did not resume the father’s time until the matter came back to Court. The mother did not show any insight into the impact on the children of suddenly not seeing the father for several months. She does not give evidence as to how she explained his absence to the children if in fact she did so at all. It also raises real concerns about her willingness and ability to support the children’s relationship with their father.
PARTIES’ COMMUNICATION
It is abundantly clear from reading the parties’ affidavits and hearing their oral evidence that both parents place a lot of reliance on what the children tell them. The mother acknowledges that she does so at paragraph 11 of the affidavit filed 13 January 2022, after reciting a litany of complaints about the father based on what the children have told her. She justifies this by saying the children say these things during the ordinary course of conversation during the day without prompting or questioning from her.
This reveals a lack of insight. It is natural for children to say things to their parents that they think their parents want to hear. Particularly in high conflict families, children are acutely aware of all the non-verbal cues parents give when the other parent is mentioned. Children may interpret this to mean the parent does not want to hear anything positive about the other parent.
At paragraph 14, the mother refers to attempts to communicate with the father about remote learning during lockdowns and complains that the father was dismissive. She says that “I understand his lack of comprehension as arising from his autistic neurodiversity”. As the mother did not set out the conversations and only provided a brief summary of her concerns, it is impossible to assess this.
The father was cross-examined about a lengthy email he sent to the mother’s lawyers when he was representing himself in response to a letter from her lawyers dated 14 September 2021. Pursuant to consent orders on 21 May 2021, Z started spending single overnight time on alternate Saturdays. The letter from the mother’s lawyers is annexed to the father’s affidavit at page 45 of the court book. In that letter they raise complaints by the mother with respect to the children’s sleeping arrangements and in particular that Z sleeps in the bed next to the father.
The letter goes on to say:
Our client instructs that Z has returned home very tired after spending overnight time with you, suggesting that Z may not be maintaining a regular bedtime when spending time with you, or that she may be unsettled during the night.
We submit that, in light of her young age, it is in Z’s best interest to maintain her usual sleeping routine.
We ask that in future you ensure that Z sleeps in a cot and that she maintains a reasonable bedtime for a child her age.
At the time this letter was sent Z had only had two overnights with the father.
When the mother was cross-examined about this, the mother conceded that she had not told the father what Z’s bedtime routine was. There is no mention of her routine in her lawyer’s letter. It is extraordinary that the mother would instruct the lawyers to make such a complaint when she never equipped the father with the necessary information. Such an approach is just inviting conflict. Whilst the letter is businesslike, it contains several assumptions and could be read as condescending towards the father.
The father’s response is Exhibit 2. In his intemperate response, the father raises various issues of concern to him, including the sleep routines for all three children and the food the children were eating, their hygiene and toileting, exposure to inappropriate TV and video games such as Grand Theft Auto, and X’s and Z’s eczema. The father said he spent hours writing it and upon reflection changed what originally read aggressively and possibly abusive, he reworded it to change the tone of his language. It is important to note that at this time the father was acting for himself. Regardless of the tone of the father’s email, it is unhelpful of the mother to simply not respond to these issues. The mother claimed she discussed the girls’ eczema at changeovers. Given the parties’ lack of communication and history of conflict and complaints to police, I think it is unlikely that she raised anything of substance at changeovers. One of the father’s complaints was the mother’s ongoing refusal to communicate with him.
During cross-examination the father referred to his email as a petty rant. The father did not accept the mother’s counsel’s contention that the letter is an accurate reflection of his denigrating attitude towards the mother. The father said that he referred to his frustration in paragraph 4 of that email. What is also clear from that email is that the father makes the same kinds of negative assumptions that the mother does about what is going on in the other’s household.
The father also assumed that the mother had him removed from the family Medicare card. He did not turn his mind to any other possibility.
The father complains that despite asking the mother to send the children with their homework to his home, they usually attend without it, and says that as a result he and his partner have purchased books they work on with X and Y to improve their reading and writing. The father failed to make enquiries of the school. He referred to the Court orders and acknowledged that since 4 December 2020, he could have contacted the school directly, but had not read that section of the orders properly. The father takes little responsibility for his own inaction and failure to make enquiries.
By agreement between the parties, during the lockdowns and with remote learning, the father had the children for a couple of hours on Wednesday rather than overnight, as the mother had difficulty managing the logistics and found it disruptive to have the children return from their father’s home, and then for the children to log on for remote learning.
The weekend before the trial started, X and Y were discussing back-and-forth about what they want to do once they got to the car park about spending more time with their father. The father says he told them, “You ask mum if mum says yes. And you want to stay and mum says yes, then that you can get back in the car and we will go home. If she says no, then I will see you tomorrow.” When cross-examined about this, the father showed no insight into how this was in fact placing the children in the middle of the dispute and placing pressure on the mother. It was inappropriate to use the children as messengers. The father said it was not his intention to involve the children in dispute. He did not think it would be a problem. The mother’s counsel put to the father that the mother went to the police about this. The police had not contacted him. The father said he did not know why the mother could not message him telling him to just let the children know next time. This is a classic example of the parties’ failure to communicate and to see things from the other person’s point of view. Both positions were unreasonable. It seems utterly disproportionate for the mother to contact the police.
There were several other examples of the parents’ failure to communicate effectively which I will not set out. It is clear that both parents view what the other parent tells them (or doesn’t tell them) through a negative prism and are also looking out for what the children say that supports their negative view. Neither stands back and considers that there may be alternative interpretations. Instead they just confirm their own biases.
PROVISION OF INFORMATION
The mother denies the father’s allegations that she is unwilling to discuss the children’s health issues with him. She said she has told him about significant issues for example Y’s sleep issues in 2020.
The mother refers to there being text exchanges where the father has referred to Y’s medication. She does not annex any of the text messages. I accept that periodically the mother has mentioned taking the children to medical appointments. I do not accept that she provided specifics to him and it is clear that she did not provide him with documents.
On 1 December 2021 the mother was ordered to provide the father with the assessment for X. Inexplicably, the mother only provided part of the assessment. She conceded when faced with it in cross-examination that what she provided to the father was impossible for him to interpret as it did not contain the key explaining the various abbreviations used.
I do not accept the mother’s evidence that she communicated these to the father orally at the time. When pressed at several points during her cross-examination it was clear that there were significant matters that she did not tell the father about. This includes the mother not telling the father that she had received legal advice that she should cease contact with the father because of the pandemic. In fact, the mother just texted the father on 22 March 2020 saying, “This isn’t working. I don’t think this is working for the kids”. As earlier noted at paragraph 50, the mother admitted in cross-examination that she had not told the father about Z’s sleep routine, despite being so critical of him for not following it – which she surmises from things the children say to her. The mother also admitted in cross-examination that she told the father that X was undergoing a “cognitive test” in 2019 but that she did not provide him with a copy of the assessment report. When I questioned the mother as to why she did not give the father the report at the time, she said “it’s something that I should have done”.
The mother also admitted she did not inform the father who the paediatrician was that Y saw, however she does say she did inform the father that he was taken to Suburb H Health. A further example includes the mother not advising the father that she had approached VACCA to assist with organising for X to have a teacher’s aide. I note that, whilst in cross-examination the mother referred to VACCA organising a teacher’s aide for X, it is more likely that an aide was organised by the school after her cognitive assessment. Y also has a teacher’s aide who was arranged by the school after the mother contacted them. The mother also admitted in cross-examination that she did not advise the father that Y had a teacher’s aide, that she uses visual planning schedules for X at home, or about X’s “Circle of Security” plan. This means that the father has no opportunity to implement similar tools in his home to make it easier for the children.
In cross-examination, when the mother did say that she provided the father with relevant information, her answers were often vague and imprecise. For example, the mother was unclear in her explanations as to why she only provided the father with two pages of X’s cognitive assessment and not the full report, only explaining that she has “been under a lot of pressure to gather a lot of information for [the father] and I’ve tried my best to do so”. Further, when questioned about X’s mental health plan and whether she advised the father that X “is struggling through the learning and can’t focus well” the mother said, “He has information. I have given him the information. I don’t agree that he has no information or has – hasn’t been informed by me.” The mother denied that she had been purposefully selective with the information she had given the father, saying “A quick rundown, as much as I could in the timeframe that I had maybe for – though the pick-ups”. I am not confident that the mother has provided meaningful information to the father.
It is also clear that at times juggling the needs of three young children and managing their appointments during periods of lockdown was challenging and perhaps at times overwhelming for the mother. It is a shame that she did not take the opportunity to involve the father and have him take on some of that burden.
THE FAMILY REPORT
Ms G prepared the family report in these proceedings dated 29 October 2021.
Ms G recorded in her family report that when asked about her proposals for the children to spend time with the father, the mother initially said it would be what they wanted. The mother went on to say this was essentially what was happening currently and she was unwilling to increase the time and complained about Z not having a cot at the father’s home.
The father said that the parties argued a lot over petty things and that the mother was controlling. He said there was no physical violence. However he told Ms G that the mother would threaten to harm the children and would dictate what he could and could not do. He said that when the children were younger, she threatened his genitals with a knife.
The father claimed to be the children’s primary carer prior to their separation.
The father said he would like to share parental responsibilities and would like to have more of a say in their well-being, care and development. He has not seen the reports that refer to X having Autism Spectrum Disorder (ASD) and Y having Attention Deficit Hyper Activity Disorder (ADHD). The mother has referred to Y taking medication and said that if he does not calm down she will give him a pill. The father said he asked for the name of the children’s paediatrician however the mother had not provided any documents. The father expressed concerns about the children’s needs not being met adequately and concerns about the mother manipulating the children, particularly X.
The father was diagnosed with Asperger’s at age 13. The mother attributed their communication difficulties to this.
The mother said the father was manipulative and controlling and that it escalated later in the relationship.
Ms G identified the high level of conflict between the parties and low level of communication.
The mother made various complaints about the father’s care of children. She said that the father would intimidate the children with food. For example, eating pizza in front of them, smacking the children quite hard. She expressed concerns about the children coming home and telling her things such as them having to keep secrets, seeing the father and his partner undertake sexual activities and the father calling X fat. The mother thinks X is reluctant to spend time with the father because she thought she was scared.
Ms G spoke to X and Y. X was in year three when interviewed. She told the report writer that she was happy at her mother’s home and not really happy at her father’s. She wishes her parents got along and says her father tells her things about her mother, such as “why does your mother feed you junk food?” She talked about having pain in her tummy at her father’s place, which does not happen at her mother’s.
Y was in year 2. He was interviewed in person and did not stop moving the entire period. He said he would be annoyed if orders were made for him to live at his father’s and spend time with his mother.
She did not interview Z due to her age but did observe her and commented that it would be timely for her to have a paediatric to assessment as she did not appear to be developing at age appropriate levels.
Ms G conducted in person in observations of the parents and children. The children were comfortable in the care of both their parents and she noted that all three were comfortable with the father and the two older children specifically sought their father out.
She observed the two older children to have close and warm relationships with both their parents and that Z is developing a secure and trusting relationship with her parents. Ms G said she had no concerns about the nature of those relationships. The children also appeared comfortable with the father’s partner and seem very fond of F.
Ms G said that X’s comments in the interview were not consistent with how she behaved with her father and she did not think that X had the maturity to develop an informed view about the parenting arrangements; she expressed some doubt as to how much X understood. She also thought that Y did not understand the questions that she asked him and that his behaviour is also not consistent with the comments he made about the father and that it was clear that both X and Y enjoyed being with their father and were excited when they saw him. She expressed concerns about the negative comments that X and Y were making about the father, given all three children’s presentations with him.
Ms G said that the parties’ allegations with respect to violence need to be tested in Court. She said it appeared that there were ongoing escalating arguments and that the parents are unable to communicate effectively now, and it is likely that they never were. She said,
there may have been ‘Situational Couple Violence’ which may occur as a result of a number of factors including poor communication and poor anger management skills. The treatment which usually assist couples with this type of violence is attending anger management when they are able to learn conflict resolution and anger management.
She recommended that both parents attend a post separation parenting program to assist them to gain some insight into the negative impact the high conflict has on children. The benefit she said, was to learn strategies for reducing conflict as currently the transition for the children between the two households be very difficult. She was of the view that currently the children are managing this conflict by showing loyalty to each parent when they are in that parent’s care, but that this is not healthy for them. She expressed concerns that X feels the need to show the mother that she does not want to go to her father and that it is likely that she suffers from anxiety due to the move between the two households and also with her parents in such conflict. The report writer said that young children in this situation tend to tell stories to their parents to keep each parent happy and have a parent believe that the child is loyal to them. These stories usually will inflame the parents and can become embellished in an effort to please the parent.
The report writer believed it was likely that X and Y were exposed to arguments and poor anger management exhibited by both parents. She said if Y was exposed to inappropriate sexual behaviour by the father and his partner, then he needs to address that and it may be appropriate to Y for her to attend therapy, specifically play therapy.
Ms G expressed concern about the mother’s explanation of X being on the spectrum and Y suffering ADHD, without providing reports of these assessments. She says that until the mother is able to produce these assessments as well as any reports and feedback from professionals it is difficult to assess the mother’s capacity to meet the children’s needs including their intellectual needs and day-to-day emotional needs. She said the children’s practical needs may be being met. At the time of the report, the father was seeking that the two older children live with him, to involve separating the siblings and in her view showed a lack of insight on the father’s part.
She recommends that the parties share parental responsibility and that after six months, all three children stay with the father on alternate weekends from after school Friday until before school on Monday. The report writer also recommends that Z should start spending Wednesday overnights. She recommended that Z attend upon a paediatrician, occupational therapist and speech therapist to assess her development and provide required assistance.
Cross-examination of the family consultant
Ms G was cross-examined on 18 February 2022 and 11 March 2022.
Illustrative of the challenges of these proceedings is the fact that when Ms Jardine cross-examined Ms G on 18 February 2022 the father was seeking orders to gradually increase his time until he was spending equal time with the children. When she resumed cross-examination on 11 March 2022, the father was seeking primary residence of the three children. The father’s counsel took Ms G through the children’s medical records which were produced pursuant to a Freedom of Information request the mother made. At several points Ms G said that if the mother had told her about the children being taken for assessments and seeing various medical practitioners she would have referred to it in her report.
The father’s counsel sought to build a picture from the medical records (exhibit 4) of the mother neglecting the children’s medical needs. For example she refers to X undergoing paediatric reviews every 3 months. After August 2020 there is no reference to further paediatric reviews. As Ms G pointed out it would be of concern if an appointment was available but not taken up rather than appointments not being available due to COVID. The appointment in August 2020 took place via telephone. Particularly due to the multiple lengthy lockdowns in Melbourne in 2020 and 2021 it is not safe to draw the inference that the mother’s counsel does that the mother just didn’t take up available appointments. It would be reasonable to assume that there are real limitations to telephone consultations where the paediatrician cannot assess the child directly.
It is not possible to draw a conclusion from the exhibits that the mother failed to take up available appointments for X as I am not satisfied that this is a complete record and it is not possible to know from the documents produced that there were appointments available that the mother did not take up.
Ms Jardine then turned to Y’s medical records. Those records refer to paediatric referrals being received for both children in July 2019, noting that the waitlist is 6 to 9 months. The session notes with the paediatric registrar on 17 August 20 records a telephone consultant with the mother. It notes that Y has had three sessions with a psychologist who thinks Y may have ADHD.
The record shows Y takes one to two hours to fall asleep. It further shows the mother noted that melatonin had worked but she was reluctant to give him medication. The doctor explained that it is a synthetic drug of a substance humans secrete at night and Y may be deficient. The mother agreed to trial melatonin for a least 4 weeks uninterrupted. The reference to an uninterrupted period of 4 weeks is suggestive of the instruction being to give Y melatonin every night for a least 4 weeks. The mother did not in fact do that but rather gave him melatonin intermittently over a four week period. Ms G said the mother not following the doctor’s instructions would be a concern. The mother’s interpretation of only needing to give Y melatonin once or twice during that 4 week period does not make sense.
It is also apparent from the records that the mother failed to arrange a follow up paediatric review in 3 months’ time as recommended. Ms G said she would see that as neglectful.
On 1 December 2021 orders were made by consent when the matter was listed for an interim defended hearing before a senior judicial registrar. In addition to reinstating the father’s time with the children and provide for the father to spend additional time during the school holidays it included at orders 4 and 5:
(4)The Mother forthwith provide the Father’s solicitor with contact details of the treating medical practitioners and their respective Autism and ADHD assessments undertaken by the medical professionals for X and Y.
(5)The parties do all acts and things as necessary for Z to attend upon a paediatrician, occupational therapist and speech therapist with the parties to follow all reasonable advice of the medical professionals and any costs associated with same to be borne equally by the parties.
In the notation to the orders, the Court noted that:
(A)The Mother unilaterally withheld the children from spending time with the Father between 20 October 2021 to date.
(B)The usual spend time arrangement between the children and the Father to continue during the 2021/2022 Victorian Gazetted Summer School Holidays.
It seems most unlikely that the father would seek an order for the mother to provide that information if she previously provided it to him. The records show the mother contacting the clinic that day requesting information asking if X was still on the waiting list for an ASD assessment as she had misplaced her waiting list letter. She was provided a further copy of that letter dated 23 April 2020.
She also asked about Y and was told that his last appointment was at the paediatric clinic on 17 August 2020. There was supposed to a review that never happened. The mother was advised that Y’s referral had expired so she would need to see her GP and obtain a new referral prior to being able to make another appointment. This record shows more clearly the mother failing to arrange the follow up review for Y which is of concern given that the follow up would have addressed the trial of melatonin (noting that the mother did not in fact follow the instructions) and given the various behaviour issues she identified in that last appointment.
The letter from the Paediatric Registrar to the GP dated 17 August 2020 confirms the information in the clinic notes.
The father’s counsel pointed to the reference in X’s cognitive assessment to the father having a diagnosis of autism. She did not appreciate that the terminology with respect to autism has changed. When the father was 13 he was diagnosed with Asperger’s Syndrome which was a term in use at the time. That term is no longer used and rather people are diagnosed with Autism Spectrum Disorder and may be diagnosed with 3 levels of severity.[1].
[1] See American Psychiatric Association Autism Diagnosis Criteria: DSM-5, 5th edition Diagnosis and Statistical Manual of Mental Disorder
Ms G was critical of the parties’ failure to communicate. She said she could not understand why they had not been able to use Our Family Wizard and their failure to communicate appropriately and maturely.
Ms G agreed with Ms Jardine’s proposition that the father raised a series of issues in Exhibit 2 that a responsible parent would be concerned about. Ms G confirmed that the fact the mother did not respond to the father’s concerns is reflective of the type of relationship they have as parents and that it is concerning.
Ms G also confirmed that the mother did not give any indication to her of her intention to withhold the children from the father and agreed it was concerning that he had to go to Court again to have his time resumed.
The mother’s counsel conceded during Mr Jardine’s cross-examination of Ms G that there is no evidence before the Court that the mother has done anything to advance Y being assessed for ADHD since August 2020. If that is the case it is concerning.
It also appears that little has been done by either parent to advance Z being assessed by a paediatrician.
Ms G noted at paragraph 120 of her report that without the mother producing the assessments and feedback from the professionals with respect to the three children, it is difficult to assess the mother’s capacity to provide for the children’s needs, including their emotional and intellectual needs.
The following exchange took place:
Ms Jardine: And very concerningly, you say until she is – this is paragraph 120:
Until the mother’s able to produce reported about the assessments and feedback from the above professionals in relation to Z’s development, it’s difficult to assess her capacity to meet the needs of X, Y, and Z, including intellectual needs and day to day emotional needs.
Ms Jardine: That’s a very serious observation, isn’t it?
Ms G: Yes.
Ms Jardine: And I am saying to you that now we know that the mother has not met the needs of the children in relation to their health. We know that the mother has not met the needs of the children in relation to helping them with their homework, and we know that there’s a litany of other issues which may or may not be correct in relation to the mother’s parenting, that it’s really – in your view, it’s – if the mother is – if the children are spending the majority of their time with the mother, in the long term that’s going to be on – on an ongoing basis, very damaging to the children?
Ms G: Unless – unless Ms Larch is prepared to do something about that.
Ms Jardine: Well, the father’s position is that by gradually – and I – I will just reiterate it because I have been saying an awful lot of things to you today. The father’s position is that he – he wants to start from – once the court makes this order, spending from Thursday to Mondays with the children in one week, and overnight on a Wednesday night in the other week for – for the first rest – the balance of term 1. And then in 3 …six nights a fortnight in the balance of term 2, and then having half shared care by the end of – end of term 2 to – from then. Then – then the father is going to be able to have a far greater contribution in making sure that the needs of the children are properly looked after. So their medical needs and their intellectual needs, and their emotional needs. You would agree with that, wouldn’t you?
Ms G: Sadly, I think that it’s far more complex than that. Shared care in my view, in this case, could not work because we have got two parents who are so far apart. They don’t communicate objectively or appropriately. Very high conflict – remains there. The whole issue is that these two parents are not going to work together to ensure that these children are cared for as they should be cared for, and they’re not going to work together to ensure that these three children would adjust to a shared care arrangement and be able to maintain that. So, yeah, I have – I have – I can’t agree. I can’t agree with that because the – the whole issue is the high level of conflict, the lack of communication. I just don’t quite understand how – with Mr Broadley’s, all his good intentions, how he can make that work.
Ms Jardine: Well, it’s – if you’re saying that, Ms G, and it’s quite clear the mother has had very ample opportunity to address the needs of these children, and I have identified with you in my questions that there has been substantial neglect by the mother, then would – I mean, the father’s original position was for the – and this is when this trial brain [sic] in February this year – was for the three children to – to live in his care. And I am saying this without instructions at the moment, but I have not got it – instructions since you have just said that. But it was his original position to live the majority of the time with the – with – in his care and spend alternate weekends with the mother, so he can address their emotional needs, their educational needs, their psychological needs, and their physical needs which have not been addressed at all satisfactorily by the mother. That would be a better arrangements, wouldn’t it, Ms G?
Ms G: Well, I say shared care in my opinion is not an option. Her Honour may have, you know, a different view on that, but I – I didn’t address the issue of the three children living with Mr Broadley because when I saw him, he spoke to me. When I asked his – what his proposal to court will be when they next go to court, it was for the two older children to live with him. And I do have that in writing. He was ..... that’s – that’s what I addressed in the report because I had concerns about the lack of Mr Broadley’s insight into separating the three children, the three siblings. So there were – I – I didn’t – I didn’t address the issue of the three children living with him, I’m sorry.
Ms Jardine then put to Ms G that the father took on board her concerns and changed his position such that now he is seeking that the 3 children live with him, not just the older two.
Ms G agreed that if the Court finds that the mother has neglected the children “to the extent that has been talked about today” then she would support the children living with the father.
Ms Jardine cross-examined Ms G about a letter from the GP to a paediatrician dated 10 July 2019 with respect to X. This recorded that the mother was concerned about learning issues, and that schoolteachers were concerned about dyslexia and that X needed further assessment and management. The letter says “mother suffers from intellectual disability”. Further, under the heading family medical history it records:
Father Aspergers
mother intellectual disability
grandfather-DM
Even more curiously, under the heading current social circumstances it states: .
currently living with her father and two other siblings.
parents separated.
both parents have equal responsibility for care and well-being of child care per family Court order.
The letter describes X as being six years and four months old in July 2019. There were no family law orders in 2019. There was a brief period in July or August 2019 when the father withheld the two oldest children. Neither party provides any detail about this so the chronology is unclear, but it appears to be after the mother sent the threatening texts. It is possible that the reference to the children living with the father is reference to this event, however it refers to the three children living with the father. Z stayed with her mother. It raises a real question mark as to the accuracy of the records.
The following exchange took place between Ms Jardine and Ms G.
Ms Jardine: 10 July 2019 and there are several other pages to the same effect, Ms G, which – where the medical clinic has knowledge of the mother’s intellectual disability. Does – how does that change your assessment, the fact there’s a diagnose – an intellectual disability that hasn’t been revealed to the father?
Ms G: Well, it can’t change anything because that provides no information about when she was assessed, how she was assessed, who she was assessed by. That – that tells you absolutely nothing. In fact ‑ ‑ ‑ that. I mean, is it severe? It is mild? When was it – she assessed, how, by whom? Yes. I – I would need all that information.
Ms Jardine: Yes. But, Ms G, this is the first time that the father has had knowledge of any medical information about that and I appreciate your – what your answer is. Does that mean that there is significant questions have to be raised about the nature of this intellectual disability before you can comment as to whether that changes your assessment or otherwise?
Ms G: Well, they lived together for how long, the mother and father, and did it concern the father when they first met and the first few years they were together I think they were fine until they started having children, so it – it just seems very strange that suddenly there’s this concern about it. No. I – you know, and until there is a great more information made available I – I really cannot make any further comment about that.
Ms Jardine: So it could be significant or it could be totally insignificant, as far as you’re saying because you haven’t got the information?
Ms G: Well, also, the father has just seen this in some documents. Did he have concerns when they were together? You know, I – I think it raises lots of questions
Ms Jardine It raises – yes. According to his evidence there was a lot of concerns, yes, but, as I said, the father has just seen this so the – how it impacted on him and so forth is not – I guess – yes. It’s just – just places a different complexion on the case. It’s more – I guess, the issue is now this issue has been raised, does it or can it – can you comment any further about the mother’s capacity to care for the children until?
Ms G: Not really, no. I – I’m aware the father has raised concerns but he certainly didn’t raise any concerns about her capacity going back in the – the relationship, so
Ms Jardine: It’s post – when the – since the relationship has finished there has been very significant issues as you’re – I’m sure you may recall, and it’s the ongoing capacity of the mother to be able to parent these children when these children have their own significant – or – well, yes, their own – have their own significant developmental issues?
Ms G: Well, again, there are many parents who suffer intellectual disabilities and who care for their children. So, you know, I guess unless there was a complete assessment – you would need a psychological assessment as to her intellectual disability and what that may mean for her in terms of her capacity. just reading that particular paragraph I would have – I would have assumed that the mother suffers from intellectual disability was meant to be X suffers from intellectual disability but – but it – you said you’ve seen it in other pages too, but there would have to be a lot more information about ‑ ‑ ‑
Ms G opined that both parents would need to be psychologically assessed in order to address their capacity with respect to the mother having an intellectual disability and the father having ASD. I note that whilst in her affidavits the mother places much emphasis on the father having autism and blaming this for various difficulties, there is no documentation or assessment and she did not seek such an assessment be carried out. Frankly, it is abundantly clear that both parents spent much time and energy labelling the other whilst not going to the effort of trying to communicate with the other constructively about the children. It is dangerous to assume that just because a parent has Autism, an intellectual disability, mental health issues or some sort of physical disability, that they are unable to parent their children properly.
When cross-examined about her concerns as to the children’s presentation in the family report and X’s entirely negative comments about the father, Ms G said that it could be a product of the ongoing conflict between her parents such that X becomes anxious prior to any changeover which is very common in cases with high conflict such as this. What was of particular concern to Ms G was X’s comments that the father cannot put his hands in the mother’s car and that he will be arrested, as that is an unusual statement for a child of that age to make and that raises concerns as to what has been said in her presence or hearing. I do note that the children were exposed to confrontations at changeovers at police stations in 2019, which would have been confusing and possibly traumatic for them.
Ms G was not concerned about the fact that X said she was not a good drawer and could not draw her family as that is a common thing for children to say in family report interviews. Ms G said X simply ran out of time when it came to just drawing herself and her mother. This would also be consistent with X’s school reports, which often comment on X needing additional time and assistance to finish tasks. Ms G also had the impression from X that things are more relaxed in the mother’s household. X has much more access to the internet and it may be that there are more rules at the father’s household. Ms G said that some of X’s answers about her father were inconsistent with the way she interacted with him during the observation. It was clear she enjoyed being with her father.
With respect to Y’s comments to her during the family report, she said it was clear that Y did not want to answer questions and he would not provide any detail. When asked, Y just said that his father has another house and does not live with mum. Ms G expressed the view that this could indicate that Y is angry about his parent’s separation.
Ms G said it was clear that the children are not coping with the separation because of the high level of conflict between their parents.
Ms G confirmed her view that Z needs a paediatric assessment as she did not think her language was as advanced as it could be. She acknowledged that language can be difficult to assess for a child between the ages of two and three, and that it can be very helpful to have a speech therapist look at that.
When asked about the impact of the father’s Asperger’s, Ms G said it was covered by the child inclusive memorandum when he told the family consultant that he had a clear understanding of the impact of Asperger’s on him, but it did not affect his parenting capacity and that therefore it had been covered for the Court. With respect to a passing reference in a very preliminary assessment in the context of a child inclusive memorandum, this is hardly dealing with the issue.
One of the gaps in evidence with respect to both parents, particularly in light of the allegations the parents make against one another, is the absence of any psychological assessment of the parents. However, I also note that despite the parents raising concerns about the other with respect to autism and intellectual disability, it is important to not simply focus on labels but to look at the parents’ behaviour and insight. The father readily admitted that he can have a tendency to see things in black and white and likes things organised and that he has benefited from his partner pointing out his instances of black-and-white thinking so he can learn. Despite whatever conditions the parties may or may not have, both parties have had full time jobs and it has not prevented either party from fully participating in the proceedings and carrying out various other activities. Neither party has sought to re-open the proceedings to lead further evidence.
Ms Daly suggested to Ms G that, although there was no suggestion the father’s Asperger’s necessarily impairs his capacity to parent, it does potentially put barriers in his way of relating to another parent. Ms G said that it was so broad and that she had seen very mild cases where individuals are able to engage and relate quite well. She certainly had no issues in engaging with the father in the family report interview and she did not see it as a major issue for him. When asked how she would view engaging with a co-parent who has anxiety, Ms G pointed out that this case is more complex in that there is an incredibly high level of conflict between the parents and that alone prevents them from having any appropriate communication. She did not accept that the father having autism and the mother having anxiety would lead inevitably to conflict between them. I accept Ms G’s evidence in this regard.
Ms G accepted that she had raised concerns about the mother not providing the autism and ADHD reports and accepted that, having read some subpoenaed material, it is apparent that those assessments have not actually been undertaken. If that did not satisfy, Ms G is concerned because the mother told her that X had been diagnosed and when Ms G asked for a copy of the assessments, the mother said she would provide them. Even if it is as the mother’s counsel tried to suggest, which is that the mother was in fact referring to the referrals and not the assessments, the mother failed to provide those.
Part of the mother’s complaint was that it was open to the father to seek information regarding the children. Of course that requires the father to know that there is information available. In any event, both counsel agreed that they had seen in his subpoenaed medical records a note that they would not provide information to the father without the mother’s consent. The mother conceded that she did not include several matters in her affidavit, such as taking the children to a paediatrician and taking X to an occupational therapist.
Ms G expressed the view that given the high level of conflict between the parties, it would be very difficult for them to work together and co-parent in a shared care arrangement as this requires a lot of co-parenting in order to support the children in that arrangement.
Ms G stressed, and I agree with this point, that if the parties engage a professional to assist them post hearing, it is important that the professional has experience in family law work and understands the logistics and the dynamics of what is going on for the children and separated families.
Ms G maintained opposition to the children living primarily with the father and said that Z is far too young and is still going through a process of attachment and that she would likely find such a change very difficult to adjust and potentially regress. She maintained that overnight time needs to slowly increase for Z. She also expressed concerns about Y and X managing such a change, given their immaturity. She did acknowledge that it is easier for younger children to adapt when they are with the older siblings. Frankly it was difficult to follow Ms G’s recommendations as to how the children’s time should increase as she did not appear to have the arrangements and proposals clear in her own mind.
CHILDREN’S EDUCATIONAL PROGRESS
The father relied on the tendered subpoenaed material to support his claims that the mother’s care of the children is lacking.
X’s school reports for 2019 to 2021 have been tendered and show that X consistently tries and is well behaved but needs considerable assistance. Her 2019 reports refer to her homework not being completed regularly and that if it was, it would assist her learning particularly in the areas of English and mathematics. She is consistently below standard as compared to her classmates and her teacher noted that she needs support to complete tasks but when she is encouraged and reassured she is willing to try and it gives her confidence, and that she learns best when she has one-on-one support.
X’s report notes that during remote learning she adapted pretty well but most of her English and mathematics tasks had to be modified for her and she had to be encouraged to try without assistance. It is clear from her reports that she has consistently struggled, particularly in English, maths and science where she has consistently been below the class standard. Her semester two 2021 report records that she fell further behind and now is well below standard in all three areas of English and in mathematics.
Y’s school reports for 2021 being his prep year show him being at the standard level in all three areas of English and maths. In the second semester he is above standard in one of the three areas of English. His first semester report does refer to his homework needing attention.
During the cross-examination of the family consultant, the father’s counsel placed emphasis on the medical records for the children and raised particular concerns about the lack of medical records for Z. Upon reviewing the tendered material, I noted that the request for the medical records for the children made by the mother’s lawyers only sought medical records for the two oldest children. The only record being produced for Z is a referral dated 7 December 2021 for speech and behaviour assessment as per court order.
X underwent a cognitive assessment at her primary school on 22 November 2019. That report makes it clear that X has some significant cognitive deficits and needs extra support in her learning.
It is apparent from the medical records that there are significant delays in obtaining specialist assistance for the children and X has been on a waiting list for an assessment for autism spectrum disorder since April 2020. However, it also is apparent that the mother failed to arrange follow-up appointments for X and with the paediatrician. She also did not follow the paediatrician’s recommendations with respect to medication.
Certainly on the face the concern about homework not being done is concerning, but I cannot help but wonder, particularly in consideration of X’s cognitive assessment, if it is unreasonable to expect X to complete those homework tasks. The school reports provide little information or context but refers to X needing extra encouragement and support to complete tasks.
PARENTING COORDINATOR
It became apparent to me during the course of the trial that a major issue that had not received sufficient attention was the parties’ lack of attempts to communicate effectively. Both parents focus on blaming the other for various real and perceived deficiencies, which results in the children missing out because of fundamental issues concerning their welfare not being communicated and the parents not working together to address these issues.
I raised the possibility of the parties benefiting from using a parenting coordinator. Whilst both parties were willing to explore that option and made some inquiries during the adjourned period, it is apparent that the issue of finding someone suitable and affordable are a challenge. Therefore, whilst the parties included orders for a parenting coordinator in the minutes, I will not make such an order as it is clear that there is uncertainty as to whether or not the parties may be able to agree on a coordinator and be able to afford it. The parties have referred to using VACCA if they are unable to find one outside that organisation but I do not know if VACCA has parenting coordinators, which are relatively new in Australia, and it may be that the parties are able to find a family counsellor or similar person to assist them. That does not require an order. I will however make an order enabling the parties to provide the family report and these reasons to any family counsellor or other medical professional they engage.
If the parties are unable to find a parenting coordinator, they should look into doing a parenting program with a counselling aspect run by J Families or similar organisation. This is not to be confused with a post separation parenting course.
CONDUCT OF THE TRIAL
The preparation for and conduct of the trial has not been ideal. Unfortunately, and it is all too common, despite the fact that the Court (particularly in the Melbourne Registry) has been conducting trials by Microsoft Teams, all too regularly counsel briefed face basic technical issues. This includes often not having the appropriate earpieces to reduce any interference and noises, and difficulty managing an electronic court book. With programs such as eBrief, electronic court books are relatively easy to prepare and it should not be necessary to point out the importance of the court book being properly paginated. It is a matter for individuals as to whether they prefer to work with a paper copy or an electronic copy. In either case, they must be able to direct the Court to the appropriate page of the court book when they are cross-examining on a particular document in the court book.
It was also extraordinary that the father’s lawyers could have thought that whilst Ms G was being cross-examined, it would be appropriate for the father to appear during part of the trial by telephone. It became apparent that a wedding was taking place that afternoon and the father was best man at the wedding. Even if he had been permitted to attend by telephone, the likelihood of him actually giving the matter his attention was slim. When I listed the matter for this additional day, no one raised any issue of unavailability on that date. The father claims that he told his lawyers he was not available that date. They said that the date could not be changed. If that is the case, I find it hard to understand why difficulty with that date was not raised at the time, or at least the question raised as to whether or not a different date could be allocated. It was apparent that the father’s counsel was not aware that the father would be on the telephone that afternoon until minutes before Court was due to resume. The evidence that was to be taken that afternoon was the remainder of the expert evidence. Particularly in a parenting case where the father was seeking to change the children’s primary residence, it is important that both parties listen to the whole of that evidence. If this trial was being conducted in person in Court, I cannot imagine that this issue would have arisen. It is apparent to me that the litigants and lawyers have become too comfortable with appearing electronically, and do not treat hearings conducted electronically with the same seriousness as appearing in a physical courtroom.
The lack of attention to detail also became apparent with respect to the medical records for the children. When the father’s counsel was cross-examining the family consultant about the records produced under the mother’s freedom of information request, it was apparent that she assumed that records had been requested for all three children, which is significant given that she was arguing that the records show the mother neglecting the children’s medical needs. Upon looking at the freedom of information request, which I called for the parents to produce, the request records that the information had only been asked for the older two children, yet neither counsel pointed out that fact at that time. I noticed this as I was reviewing material during the adjournment. I was concerned that it might be a misleading picture going to a vital issue in the case if all the medical records were not before the Court, and thus I caused chambers to put the parties on notice of this concern.
The 450 pages of additional medical material was made available to the parties the day before the trial was to resume. In an extraordinary exchange with the mother’s counsel before the family consultant was recalled, the mother’s counsel complained that the documents show that the father had failed to disclose the two occasions before the hearing commenced to date that he had attended the clinic where the children were attending. Therefore his assertions that he had not been given information is untrue.
When I asked Ms Daly as to whether she was seeking to reopen and recall the parties. She said the following:
MS DALY: Your Honour, that’s why I’m saying I’m not really certain as to where we stand. My situation is this: these matters have come to light when the mother, as sought, but even prior to being requested by the court, she had started to try and get the information that seemed to be lacking on the basis of what had been put to the court previously. In doing so, she arranged to obtain the documents which clearly showed that the father had been informed about the paediatric assessments prior to saying in this court, under oath or affirmation, that he had no information. He also, as the papers will show your Honour, claimed that the mother had an intellectual disability and that the children were living with him. Your Honour, he was always able to take the children to see this general practitioner or any other general practitioner, but he failed to do so until December ’21, and then again at the end of January this year. And so, your Honour, we say that his evidence is tainted. We say that he is actually not being frank with the court, and we say that is a problem.
It remained somewhat unclear as to what exactly Ms Daly was seeking to do. Of course this was now the third occasion that an expert was waiting to give evidence and Ms Daly said she was comfortable for the expert to be called in her evidence to conclude the trial, yet said that she would seek that evidence that the father has not been frank with the Court “should be noted once it is established.” This is a very serious allegation to make and one with which Ms Jardine would need to obtain instructions and then may well have sought to reopen her case. Ms Daly had not put Ms Jardine on notice of this issue and had not produced documents that she claimed supports her contention. Quite properly, Ms Jardine objected to this, noting that the trial had been listed for some time and that the evidence for both parties had been concluded.
There was a further exchange between myself and Ms Daly:
MS DALY: Your Honour, my submission at the moment is these are matters are critical. Nevertheless, the parties have been able to manage what is happening in a reasonable way, your Honour. Whatever either of them may have done or not done in the past, they are, at the present stage, cooperating to a significant degree and my submission is that that is – that is a gain and it ought not be wasted and, therefore
HER HONOUR: But that’s going to be a matter – I mean, you can’t raise issues about there being, you know, real issues of non-disclosure, etcetera, and then ignore it. I mean, it’s either
MS DALY: Well, you can’t
HER HONOUR: You’re either raising it or you’re not but
MS DALY: Well, we are raising it.
HER HONOUR: And frankly, this is one of these cases – I don’t think I can recall a case where I’ve given up trying to keep track of what this case is about because it just seems to keep changing. I mean, it has just been extraordinary.
Ms Jardine sought to make much of the new documents, and the references in particular to the mother having an intellectual disability and similar, would put a significantly different slant on the case. Ms Daly then sought to make out that it is the father who is giving the clinic that information about the mother, and claimed that the mother had not ever said that she had an intellectual disability. Again, this is very serious allegation to make. These allegations were not made out.
It was apparent that Ms Daly was seeking to avoid reopening her case and to recall both parties. If such serious allegations are going to be made, it must be done properly and it is greatly troubling to me that no document was produced to establish a basis for such serious allegations.
Both counsel sought that Ms G conclude her evidence and the trial proceeded in that manner. Ms Jardine cross-examined Ms G on the further medical evidence that had been produced.
During the course of Ms Daly’s cross examination of Ms G, another extraordinary exchange occurred. In attempting to address matters put by Ms Jardine to Ms G, who took Ms G to specific medical records, Ms Daly was seeking to put general propositions to Ms G without taking her to specific documents. Ms Daly made an extraordinary assertion that the respected counsel’s positions were not equal as Ms Jardine was privately funded and the mother is in receipt of legal aid. Legal aid work is important. It is well known that the payment for that work does not reflect the value of the work. Ms Daly made assumptions that Ms Jardine had assistance to help organise documents. I note that during the hearing, the mother’s lawyers attended via teams. Those who take on legal aid work should give the same level of service as private paying clients. Once counsel takes on a trial, they are obliged to run the case to the best of their ability. It is utterly unacceptable to suggest that it is too much for counsel to read and be across documents. If counsel knows that they will struggle to manage electronic documents and conducting hearings electronically, then they should not take the brief.
When directed to take Ms G to specific documents, Ms Daly said it was not possible because there was “such a huge amount of documents.” Ms G did express concern about the references in school reports to the children’s homework needing attention which is referred to several times and which suggests that the mother is not providing that assistance.
Ms G was interposed before the Ms Daly re-examined the mother. Unfortunately Ms Daly attempted to address issues with the mother outside the scope of re-examination in an attempt to avoid applying to reopen. I made clear again that if the issue is that there is new evidence such as the medical records produced during the adjournment, then it is a matter of reopening the re-examination. The mother denied neglecting the children’s homework and said that in addition to receiving support from VACCA, she also obtained assistance for the children through another aboriginal service called K Centre where the children can take homework there once or twice a week. She said she also sits with the children at home with the worksheets. The mother says that this year the children’s homework has improved and she has received that feedback from school. The mother was also adamant that the doctor did not say that Y was to take melatonin every night for a four week period, but that she was to give him melatonin on a couple of nights during a four week period.
It became apparent yet again during the course of re-examination that Ms Daly was trying to avoid taking the mother to the specific documents that Ms Jardine had cross-examined her on particularly with respect to not following up on appointments, which is something the mother denies.
The mother’s counsel then sought to provide particular pages of the new material which I was told consists of 455 pages and that they be provided to the father’s counsel and the Court after the conclusion of the hearing, and the documents would either show the referrals and what has happened with respect to the paediatricians or not. Not unreasonably, Ms Jardine objected to that course and required the witness to either be taken to the documents now or not.
When pressed, Ms Daly said that she could not take the mother to the documents as she had too many screens open and even standing the matter down for five minutes would not be enough time for her to find it. It was quite apparent that Ms Daly was not across all of the documents and I am left some real doubt as to whether or not those documents actually contain that further information or not. Ms Daly repeated that she could not provide the document and would rely on her client’s “merit as a witness, her veracity and what she said to the Court”. That does her client a real disservice because the father’s counsel tendered and relies on medical records that do not support Ms Daly’s contention. The case had been listed only for the morning to make up for the afternoon lost referred to earlier, and I had a commitment that afternoon. I stood the matter down at 12.21pm to give the mother’s counsel the opportunity to find the documents. When the matter was re-mentioned at 12.57pm, Ms Daly said that they had not been able to locate the documents and then said that in any event, the document would not show any rebooking.
CULTURE
The father has aboriginal heritage on his mother’s side. The mother has aboriginal heritage on both sides of her family. She told the family report writer that it was very important that children learn about their aboriginal culture and history. She says the children are involved in the Victorian Aboriginal Child Care Agency (“VACCA”).
In his written submissions the father’s counsel stated that he will be proactive in assisting the children achieve their right to enjoy their Aboriginal culture and heritage.
I am satisfied that both parents will support the children in achieving their right to enjoy their Aboriginal culture and heritage. It is not necessary to make orders in this regard.
ORDERS SOUGHT IN WRITTEN SUBMISSIONS
Due to the nature and length of the trial, I ordered for the parties to provide written closing submissions two weeks after the trial, with the opportunity to provide submissions in reply one week following. Both parties filed their written submissions on 25 March 2022. The mother’s written submissions indicated that the mother is seeking interim orders be made, not final orders. As the submissions did not provide for the interim orders the mother was seeking, I directed in chambers for the mother’s counsel to provide further submissions on why interim and not final orders were sought, and a minute specifying the orders the mother sought. This was provided on 28 March 2022. The mother also filed submissions in reply on 1 April 2022. The father opted not to file further submissions.
In his written submissions, the father sought that orders be made on a final basis. He sought equal shared parental responsibility for the children and for the children to live with him. He sought for the children to spend overnight time with the mother each Wednesday afterschool until the commencement of school on Thursday, and for each alternate weekend from conclusion of school Friday to commencement of school on Monday. He also sought telephone time for the children with the mother by agreement, or otherwise each Tuesday night from 7pm to 7.30pm. His orders provide for equal shared time over the school holidays on a week-about basis. The father also seeks the parties attend upon a parenting coordinator for sessions to assist with their parenting, and to attend Family Dispute Resolution in the event they cannot resolve a dispute.
In the mother’s interim minute provided on 28 March 2022, the mother also sought equal shared parental responsibility. The mother sought for the children to live with her and to spend time with the father from after school Fridays to the commencement of school on Mondays, as well as each alternating Wednesday. It is unclear if the mother seeks for the alternating Wednesday to be for overnight time until the commencement of school on Thursday, or evening time only. The mother seeks for Z to continue to spend overnight time with the father according to the current schedule (that is, each alternate 10.00am Saturday to 6.00pm Sunday for Z). The orders are again unclear with respect to Z’s Wednesday night time. In the mother’s submissions and orders sought with respect to school holidays, it appears that she now says the older children should spend half of the school holidays with each parent, but that Z’s spend time arrangements during the school terms should continue during the school holidays.
The mother’s interim orders further seek that a mention be listed to review the progress of the children’s time with the father before me before the end of August 2022. However, there is no detail as to how that review would take place. A mention provides insufficient time for anything substantive. Presumably, the parties would need to file affidavits too, and looking at the affidavits filed previously it is likely that they will be of limited assistance. I acknowledge that during the trial, I expressed concerns about whether or not I had sufficient evidence before me to make final orders. Having reviewed and considered all of the material I do not have that concern now as, whilst many issues have been raised, the purpose of making interim orders would be in order to obtain further evidence in the event I could not be satisfied that I could make final orders in the children’s best interests based on the current state of the evidence. For example, if I thought it necessary to have the parties’ psychologically assessed with respect to autism and intellectual disability. Neither party sought this and I do not think it is necessary. Furthermore, the waiting lists regarding the various specialist appointments for the children have been made worse by the pandemic, it is unlikely that further evidence with respect to the children’s functioning will be provided by then. That information also would not necessarily mean that the orders would need to be reviewed.
There has already been considerable resources spent on this matter and I note that the mother is in receipt of legal aid and the father is paying privately. Leaving the matter on foot involves more expense, but also the ongoing stress of Court proceedings being on foot. I also note that the mother opted not to seek to reopen her case, despite raising serious allegations. I would be concerned if making interim orders would encourage the mother to pursue those issues in another roundabout way.
Also significantly, I note that the parties are able to bring further proceedings if there is a change of circumstances. In my view, it be preferable to make final orders rather than keeping the case in the Court system without a clear path forward. The parties are able to bring an application at an appropriate time with such supporting evidence they may have.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] 240 CLR 461, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time. At paragraph 13 of the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph 15:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
CONCLUSION
Consistently with the parties’ written and oral evidence, both written submissions are critical of the other party but fail to engage with the evidence, or in some instances, lack of evidence.
For example the father’s submissions state that there appears to be “a strong effort by the mother to coach the children” but fails to address Ms G’s evidence which does not support that submission, and offers alternate explanations including the children’s exposure to the sustained high level of high conflict between the parties. The father’s submissions also fail to engage with Ms G’s evidence and in fact misrepresent them. Whilst Ms G acknowledged the concerns raised in the children’s medical and school records, she also referred to Z still forming her attachments. She further expressed some concern as to how the older two children would cope being placed in the father’s primary care. The evidence does not support the father’s submission that the children will “readily adapt to living with him”. Certainly, Ms G indicated that all three would cope with an increase in time with the father. This is a different thing to living in the father’s primary care. Furthermore, Ms G also opined that a shared care arrangement would not work for these children as it requires significant co-parenting and coordination between the parents.
Both parents now seek an order that they exercise equal shared parental responsibility for the three children, and I am satisfied that that is in the children’s best interests. I am therefore required to consider whether or not equal time or substantial and significant time is in the children’s best interests. Both parents seek orders for the children to live primarily with them. Ms G was firm in her evidence that an equal shared arrangement would not benefit the children in circumstances where the conflict between the parents is high and their communication so lacking as for an equal time arrangement to work for the children. Parents need to be able to confer and coordinate with each other readily and also respect and have confidence in the other parent’s parenting capacity.
The mother emphasises the children’s young ages and their primary attachments to her. The father emphasises the mother’s shortcomings in addressing the children’s educational and medical needs. The father also refers to the mother having an intellectual disability. The difficulty with the father’s position is that whilst the material certainly raises concerns and some questions, in my view it does not reach the height of the children being at an unacceptable risk of neglect in the mother’s care. Whilst considerable criticism can be made of the mother failing to inform the father in a meaningful way of important information relating to the children, the father has also been somewhat passive with respect to, for example, enquiries he could have made at the school. The father is also somewhat untested as the primary parent for the children. The father has a young child with his partner and whilst that was not the subject of any attention during the trial, that would also involve an adjustment in living in a blended household.
I continue to have concerns about the mother’s willingness and capacity to facilitate the children’s relationship with their father. Whether or not there was one or two distinct periods of the mother withholding the children prior to proceedings being commenced is not something I can determine and is not what concerns me, as much as the two periods of withholding and the length of those periods after the proceedings began as I noted earlier. Whilst it is understandable that in March 2020 the mother would have had concerns about the impact of Covid-19, there is no evidence to support her contention that she was concerned that the father would not follow recommendations and restrictions. These two periods, which lasted for months would have involved considerable disruption and confusion for the children. The mother did not show an appreciation and insight into this.
Both parents seem keen to label the other parent as being autistic on the one hand and intellectually disabled on the other, as if to explain the difficulties between them without looking at their own interactions and shortcomings.
It is most unfortunate that the mother did not meaningfully inform the father of the medical and educational issues for the children and seek his assistance in this regard, given the ages of the children and potential for all of them having special needs, and particularly noting the added challenges presented by multiple lockdowns in Melbourne at various times, which was probably overwhelming for the mother. The father says in his submissions that the mother has made admissions with respect to the health and education issues which were recently raised by the father, and that these issues are now being attended to mainly by the father. That oversimplifies and overstates the evidence. The mother made some admissions about not providing the father with information but did not accept the proposition that she had neglected the children’s care and further, there is no evidence before the Court as to the father mainly addressing those issues now and the reality is, there has been little opportunity for him to do so. What is clear is that these parents need to work together and ensure that all three children are assessed by a paediatrician and have a follow-up, which is recommended to be carried out as soon as practicable.
Increasing the father’s time with the children will enable him to be more readily involved in those matters.
Whilst both parents raise allegations of family violence and it is clear that the mother engaged in serious family violence and threatening texts to the father for which she faces charges, there is no evidence that she has engaged in that conduct since then and based on the limited evidence before me with respect to family violence, I think Ms G’s characterisation of it likely being situational couple violence, which both contributed to, rather than being a form of violence where one party is engaging in coercive and controlling violence, is correct. It does concern me that the mother’s submissions refer to the father facing court in April 2022 for breach of family intervention order when that was not the subject of any evidence before the Court. Submissions should be restricted to being based on the evidence presented before the Court and is not an opportunity to seek to introduce evidence.
I do not accept the mother’s submissions about the mother’s ignorance or lack of understanding being why she only provided two pages of the assessment. There was simply no logical or reasonable explanation for her not providing the whole document. This does not go to any issue of sophistication or otherwise on the mother’s part.
I do accept the mother’s submissions that the father’s criticisms of the mother with respect to the children’s homework is somewhat unfair as both X and Y and have been assessed as requiring aides at school to assist them.
Unhelpfully, the parties provided conflicting proposed orders with respect to special days and school holidays, these were not the subject of evidence or argument at trial. I see no reasons as to why the children should only spend the afternoon of Mother’s Day and Father’s Day with that parent. I also see no reason why the children should only spend the afternoon of Christmas Day with the father. I will make the father’s proposed orders for the Christmas period. I am concerned that a seven day block period will be too much for Z for the school term holidays. For the rest of the year, Z should have a block of four overnights with the father during the school term holidays.
I do not propose to make orders for set telephone contact. It was not raised during the trial and all too often those orders are about the parents rather than the children. I will require the parents to facilitate a child to call the other parents at the child’s request at reasonable times. I warn both parents that they should not use this as an opportunity to question the children about whether or not they sought to speak to the other parent and should not assume that the other parent prevented a child from calling if they do not receive a call.
Neither party proposed orders that deal with using a parenting app, despite the criticisms made in this regard by Ms G. There are a plethora of parenting apps available, many of which are free. If the parties found Our Family Wizard too difficult to use, there are many others including 2Houses and MyMob. I will order that the parties use an agreed parenting app. In the event they are unable to agree, within seven days of the date of these orders, the father shall within a further seven days nominate three parenting apps. Within a further seven days, the mother shall choose one and the parents shall use that app to exchange non-urgent information, including but not limited to the children’s routine and medical appointments.
The evidence supports the children having a good relationship with both parents. They have been in the mother’s primary care and I accept Ms G’s evidence about the detrimental effect, particularly with respect to Z’s development and attachments, if the children live primarily with the father at this stage. Whilst the evidence supports there being concerns about the mother’s capacity to manage the children's educational and medical needs, as well the mother’s willingness and capacity to facilitate the father’s relationship with the children, the evidence does not rise to the level that the children’s interests require them to live primarily with their father. I accept Ms G’s evidence with respect to an equal shared care arrangement not being workable for the children given the high conflict between the parents and lack of effective communication.
Increasing the father’s time with the children will enable him to be more actively involved in the children’s schooling and medical needs. There may be further proceedings. The children are young and the extent of their medical and developmental needs are unknown.
For these reasons I am satisfied that the orders I will make are in the best interests of the children.
I certify that the preceding one hundred and ninety (190) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 18 May 2022
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