Brooker & Brooker
[2022] FedCFamC2F 1144
Federal Circuit and Family Court of Australia
(DIVISION 2)
Brooker & Brooker [2022] FedCFamC2F 1144
File number(s): SYC 4744 of 2017 Judgment of: JUDGE BOYLE Date of judgment: 25 August 2022 Catchwords: FAMILY LAW – Children – benefit of meaningful relationship – father seeks orders for no time with mother – drug abuse and mental health issues. Legislation: Family Law Act 1975 s 60CC Division: Division 2 Family Law Number of paragraphs: 86 Date of hearing: 6, 7, 8 June 2022 Place: Sydney Counsel for the Applicant: In person Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: ATW Lawyers Solicitor Advocate for the Independent Children’s Lawyer: Mr Holmes Solicitor for the Independent Children’s Lawyer: Holmes Donnelly ORDERS
SYC 4744 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BROOKER
Applicant
AND: MS BROOKER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BOYLE
DATE OF ORDER:
25 August 2022
THE COURT ORDERS THAT:
1.All prior parenting Orders be and are hereby discharged.
2.X born in 2009 and Y born in 2010 (“the children”) live with their father.
3.The father have sole parental responsibility for the children.
4.The father keep the mother informed in a timely manner, in writing, of any decisions he makes in the exercise of his sole parental responsibility.
5.Subject to the conditions hereafter appearing, the children shall spend time with their mother as follows:
(a)Each alternate Saturday from 10am to 3pm.
(b)For two hours on each child’s birthday.
(c)For two hours on the mother’s birthday.
(d)From 1pm to 4pm on Christmas Day alternating with Boxing Day in each second year.
(e)For three hours on Mother’s Day.
(f)Any time the children would spend with the mother be suspended on Father’s Day.
(g)Such other times as may be agreed between the parties in writing.
6.For the purposes of order 5, the conditions are:
(a)That the mother submit to random urinalysis and/or CDT testing at intervals of not more than three months at such times as determined by the father (giving not less than 7 days’ notice in writing) and shall produce to him a negative test result.
(b)That the mother provide a written authority to Dr C to provide to the father a copy of all and any reports which Dr C sends to the mother’s referring general practitioner;
(c)That the mother continue to attend upon Dr C, or other psychologist or psychiatrist recommended by him, at the frequency recommended by Dr C;
(d)That the mother comply with all prescriptions for medication from Dr C, or other treating psychologist or psychiatrist;
(e)That the mother immediately notify Dr C, or such other treating psychologist or psychiatrist, if she intends to cease complying with any medication prescribed to her by them;
(f)That an undertaking to the court be given within 7 days by each of the mother’s parents that they shall forthwith notify the father by phone and in writing, in the event of the mother’s hospitalisation;
(g)That the mother abstain from consuming any illicit or illegal drugs including methamphetamines.
7.The children shall communicate with the mother:
(a)Via telephone as agreed between the parties and failing agreement, each Thursday at 7.00pm, with the mother to instigate the call.
(b)By letters, cards and gifts at any time.
8.Upon attaining the age of 15, X and Y shall spend time with the mother in accordance with their wishes.
9.If they have not already done so, the parents shall forthwith arrange and attend upon a service for Children Of Parents With Mental Illness (COPMI) at B Hospital, or if not available the nearest public hospital that provides such service, in order for the children to be provided with assistance to understand their parent’s mental health issues.
10.Should the mother return a positive test for methamphetamines, or be hospitalised with respect to mental health or issues related to substance abuse, time pursuant to order 5 shall be suspended.
11.The mother’s time with the children shall resume if it is suspended pursuant to order 10 herein as follows:
(a)Should the cause of suspension be a positive drug test for methamphetamine time shall recommence when she has returned two clear urinalysis test results no less than 14 days apart, and no more than 21 days apart.
(b)Should the cause of suspension be hospitalisation with respect to mental health, time shall recommence the first Saturday 14 days after such discharge.
12.Within 30 days the mother shall pay to Legal Aid Commission of NSW her share of the costs of the Independent Children’s Lawyer, being the sum of $2,268.25.
13.There be no orders for the father to pay costs of the Independent Children’s Lawyer.
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 Brooker & Brooker has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYLE:
These are parenting proceedings with respect to the children X aged 13, and Y aged 11. The children have lived with their father, and his partner Ms D, for the past eight years.
With no disrespect intended, the applicant shall be referred to as Mr Brooker, and the respondent as Ms Brooker in these reasons.
Mr Brooker initiated proceedings to seek orders for sole parental responsibility, and to suspend the mother’s time. Ms Brooker seeks to reinstate time arrangements.
This is the third time these parties, and children, have been through litigation. Final consent orders were made on the last occasion on 30 August 2019. The toll of litigation cannot be underestimated on all concerned.
BACKGROUND
The background factual matters are not in dispute. A consideration of those matters is relevant in order to understand the positions both parties have reached.
Mr Brooker spent no significant time with the children for the year following separation on 17 February 2010. X was 2 years old, and Y was born during that period. Mr Brooker had problems with alcohol at that time.
On 12 November 2013 the parties agreed to a parenting plan for essentially an equal time arrangement. On 15 May 2014 another parenting plan was agreed to, where the children lived primarily with Ms Brooker.
In July 2014 Ms Brooker was admitted to E Hospital following a cocaine overdose. Since that time the children have lived with Mr Brooker. X was five years, and Y was three years.
Ms Brooker commenced treatment with Dr C, psychiatrist, on 17 December 2013. Dr C has remained her treating psychiatrist to date.
Mr Brooker first made an application for parenting orders on 25 August 2014. Orders were sought for Ms Brooker’s time with the children to be supervised.
Ms Brooker obtained a report from Dr C on 1 November 2014. The report included a diagnosis of borderline personality disorder. He suggested that her prognosis was positive, and supported further supervised time.
In late 2014 Ms Brooker attempted suicide. She was hospitalised at F Hospital for three weeks. During that time interim orders were made by consent that provided Mr Brooker with sole parental responsibility, and time between the children and their mother at Mr Brooker’s discretion.
Further interim orders were made on 27 March 2015 for Ms Brooker to have supervised time. Ms Brooker had further admissions to hospital on 30 July 2015 for four days, and in August 2015 for five weeks. On 10 September 2015 a Community Treatment Order was made against Ms Brooker. The order was in place until 9 March 2016.
In November 2015 Ms Brooker was hospitalised twice with respect to ICE use. She then attended rehabilitation for eight weeks at the G Clinic.
On 10 February 2016 orders were made suspending Ms Brooker’s time with the children. In June and July 2016 she was treated as an inpatient at H Hospital Mental Health Unit.
On 15 August 2016 an undefended hearing took place where final orders were made in favour of Mr Brooker.
In November 2016 and early 2017 Mr Brooker was admitted to J Hospital with respect to alcohol related problems. On 14 June 2017 he was breath-tested by New South Wales police, and recorded a Blood Alcohol Concentration reading of 0.225. He was convicted the following month, and lost his license for 6 months with a fine. On 18 June 2017 an apprehended violence order was made for the protection of Ms D and the children against Mr Brooker. From 26 to 29 June 2017 Mr Brooker was an inpatient at K Hospital. Ms D cared for the children in Mr Brooker’s absence.
On 25 July 2017 Ms Brooker commenced further parenting proceedings seeking equal shared parental responsibility, that the children live with her and spend time with Mr Brooker on alternate weekends. Those proceedings involved a Child Inclusive Conference Memorandum, and a Family Report. On two occasions the matter was listed for interim hearing. The maternal grandparents intervened in the proceedings.
On 1 November 2018 Dr C completed a report. He noted Ms Brooker’s diagnoses of bipolar disorder and substance misuse disorder, and that both were in long-term remission.
Final orders were made by consent on 30 August 2019. The orders provided for the parents to have equal shared parental responsibility, and that the children live with Mr Brooker. Orders were made for the children to spend time with Ms Brooker from Thursday to Monday each alternate week, special days and holidays. The orders required Ms Brooker to continue attending on Dr C, or such other psychologist or psychiatrist recommended by the doctor, and to comply with all medication prescribed. Ms Brooker was required to notify her treating therapist should she decide to cease complying with medication prescribed. Further orders restrained each party from consuming illicit substances. Mr Brooker was restrained from consuming codeine, other than as prescribed, and the mother was restrained from consuming alcohol to excess.
As is clear from the above background, Ms Brooker has a history of psychiatric issues. She has been diagnosed with schizoaffective disorder, borderline personality disorder and substance misuse disorder involving methamphetamine. She has a history of admissions to hospital. She has been in treatment with her psychiatrist Dr C for the past eight years. Drug use and admissions to hospital have caused interruptions in her spending time with the children. These problems are at the core of the extensive litigation between the parties.
In August 2020 Ms Brooker ceased taking prescribed medication, due to the side-effects. The symptoms of depression returned. In February 2021 she self-admitted to L Hospital after using ICE over a period of 2 to 3 days. She stopped seeing the children at this time, and send a text message to Mr Brooker on 18 February 2021 that she was “really sick”.
At the beginning of April 2021 Ms Brooker used ICE over a period of 2 to 3 days. She was admitted to B Hospital, then to L Hospital for four weeks. Over this period she signed an undertaking that she would not collect the children from school until 21 July 2021. In 2021 Ms Brooker was admitted to B Hospital after use of ICE. She threatened to jump off an overpass prior to admission.
On 21 February 2022 Ms Brooker was admitted to B Hospital for treatment of depression and suicidal ideation. She was transferred to L Hospital, where she remained until 16 March 2022.
The children’s time with Ms Brooker has been disrupted since February 2021. She has not spent time with the children for the past 12 months other than short, supervised periods. This coincided with the later stages of Ms D’s pregnancy with M, and caused stress for Ms D, Mr Brooker and their family at a time that should have been focused on the imminent birth.
Mr Brooker has had past issues with respect to alcohol and codeine misuse. This is not associated with any diagnosed mental health condition. He last experienced problems with addiction in late 2016, and 2017. Ms D cared for the children. She was clear in her evidence to the court, and at the time, that she was not prepared to tolerate, nor condone, his conduct. Mr Brooker gave evidence that Ms D’s attitude accelerated him hitting rock bottom, and motivated him to take action. He has not had a relapse since.
Mr Brooker and Ms D have two young children: M aged 1 year, and N aged 3 years. Mr Brooker is concerned about the impact of future proceedings not only on X and Y, but their younger siblings, his partner and himself. He regards further litigation as inevitable if orders are made for time between the children and Ms Brooker. He bases this belief on her history of drug relapse, continuing mental health issues, and the history of litigation. He referred to significant problems for the children in managing inconsistent time arrangements with their mother.
APPLICATIONS
Mr Brooker seeks sole parental responsibility, and opposes any orders for time with Ms Brooker being made. If these orders are not made, he says he cannot continue to care for the children. He would give the children to their mother, and he would not see them. I accept that Mr Brooker has agonised over taking this position.
At the commencement of the hearing Ms Brooker amended her position to align largely with the orders sought by the Independent Children’s Lawyer. They both seek time for Ms Brooker with the children each alternate Saturday from 10am to 4pm, and that extend on each third occasion overnight to Sunday. There are extensive orders sought with respect to information to be provided to Mr Brooker, so that he is aware of any mental health issues for Ms Brooker. Ms Brooker’s time would be automatically suspended if there is an admission to hospital, or drug relapse. If that occurs time resumes two weeks after the period of admission. The intention of these orders is to provide mechanisms for time to be suspended and re-start, without further litigation.
Ms Brooker seeks additional orders for time to occur during school holidays for up to 4 days at a time, on special occasions and the like.
Both parents acknowledge their past vulnerabilities and frailties with their mental health, and drug issues. Those matters are relevant to the positions taken by both of them.
ISSUES
(a)What the risk is to the children if they do not see their mother;
(b)What the risk is to the children if they do not see their father;
(c)What the risk is to the children if they do not see their siblings, and Ms D;
(d)What the likelihood is of the father relinquishing care of the children should there be an order for time with the mother;
(e)Whether the mother is able to care for the children should the father relinquish their care;
(f)What the views are of the children about the various proposals, and how their maturity is relevant to any views expressed.
DOCUMENTS RELIED ON
The father provided to the court a list of documents relied on in his Case Outline:
(a)Application for Final Orders filed 3 May 2021.
(b)Affidavit of Mr Brooker filed 29 April 2022.
(c)Affidavit of Ms D filed 29 April 2022.
(d)Affidavit of Dr C filed 10 March 2022.
The mother provided to the court a list of documents relied on in her Case Outline:
(a)Response to Application for Final Orders filed 18 March 2022.
(b)Affidavits of Ms Brooker filed 29 April 2022 and 1 June 2022.
(c)Affidavits of Ms O filed 29 April 2022 and 1 June 2022.
(d)Affidavits of Mr P filed 29 April 2022 and 1 June 2022.
(e)Affidavit of Dr Q filed 18 March 2022.
Additionally the Court has been assisted by a Child Impact Report by Court Child Expert Ms R dated 27 April 2022. Ms R was cross-examined.
Both parties were cross examined. Ms Brooker’s psychiatrist was cross-examined, as was her mother. Her father was not required for cross examination. Ms D, Mr Brooker’s partner, was cross-examined.
I accept that all the witnesses did their best to give honest, reliable evidence. This case does not turn on issues of credit.
PRIMARY CONSIDERATIONS
Section 60CC(2) The primary considerations are:
(a) Benefit to the children of having a meaningful relationship with both of their parents.
(b) The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The children have the benefit of a meaningful relationship with Mr Brooker. He has been their primary carer for the majority of their lives. They have close and loving relationships with each other. The children were aged 9 and 6 respectively when Mr Brooker last had serious issues with addiction. They would have memories of being cared for by Ms D, in his absence. It is not clear what impact that separation had on the children’s relationship with Mr Brooker.
The children have not seen Ms Brooker for a period of about 12 months, other than short supervised visits over Christmas, and their birthdays. They speak to her each week on the telephone, and the calls go for about 30 minutes for each of the children. The evidence of both parents suggests that telephone communication works well.
I accept that for telephone communication to work as well as it does, a meaningful relationship exists between both the children and their mother. This is the case despite the numerous times they have gone periods without seeing her.
Ms Brooker’s potential relapse into drug use is a risk for the children in terms of exposing them to psychological, and potentially physical, harm. The drug used by the mother is ICE. If she is affected by this substance with the children in her care, they would be at risk of harm from exposure to abuse or neglect. Whilst I accept that Ms Brooker has endeavoured to keep the children separate from her drug use, and does not use while they are with her, the effects of usage are not short lived. If she is recovering from using, or wanting to use when the children are with her that would potentially cause risks of harm for them.
Ms Brooker has attempted self-harm during relapses. It would be extremely detrimental for the children were they present when this occurred. When the mother is frankly mentally unwell there are a variety of risks for her spending time with the children. The mother accepts that is the case, and absents herself from time with the children.
Were the children to live with Ms Brooker, they would be subject to additional risks. Ms Brooker has not had sole care of the children since they were very young. The stress of that on her is unknown. The children would be mourning the loss of their father, Ms D and siblings. They would likely feel abandoned, and rejected. There is no evidence of how she would manage their needs in those circumstances. It is not known what impact that would have on her mental health, and potential relapse.
Being separated from their father, Ms D and siblings would expose the children to the risk of psychological harm. It is not known how they would understand being abandoned by their family. The report writer was not able to raise this with them, given the risk that doing so would pose to their psychological welfare.
ADDITIONAL CONSIDERATIONs
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
X told the report writer she had concerns about what may happen on overnight visits with her mother, although she also said she would like to see her. I accept that X is ambivalent about her relationship with her mother. Given her age, I accept that she can recall problems with time arrangements previously. This impacts her views, and hesitancy.
X was not asked her views about not living with her father by the report writer. It is reasonable to expect that she has never contemplated not living with her father, Ms D and siblings. I accept she has close relationships with all of them.
On the evidence of the report writer I accept Y is yearning for a relationship with his mother. He does not have the memories that X has of scary times with her. Mr Brooker and Ms D have protected him from any criticism of his mother.
I accept Y had no perception that there was a possibility he would not live with Mr Brooker, Ms D and his siblings. Were he aware that having a relationship with his mother would mean living with her and not seeing his father, Ms D or his brothers, he would not have the maturity to weigh up that option to come to a considered view. It is difficult to imagine that an adult could manage that assessment, let alone either of these children.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents, and
(ii) other persons (including any grandparent or other relative of the child);
and
Section 60CC(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The children have close relationships with their father. He has been the most consistent parent in their lives, and they rely on him.
The children have close relationships with Ms D, who has provided loving, reliable care to them for years. She stepped in to care for them when their father was dealing with alcohol problems in 2017. A separation from her would likely be extremely emotionally and psychologically difficult for the children.
It is likely the children would suffer from psychological harm were they separated from N and M. Apart from missing their siblings, they would know that they were still living with their father and Ms D. It is impossible to gauge the impact on them of this rejection, other than to view the ramifications as lifelong. This would likely be the case for M and N, were they separated from their siblings.
There have been numerous interruptions to time arrangements between the children and Ms Brooker. X in particular has had difficulty with time occurring inconsistently. When time has stopped there has been no indication of when it would resume, and little information provided to her about why it ceased. This has been a feature of her life to date. Y’s yearning for his mother is at least in part due to separations from her. The inconsistent relationship has been difficult for him to manage.
Mr Brooker has taken the view that Ms Brooker’s struggles with mental illness and drug problems is “not his story to tell”. This approach has been respectful of Ms Brooker’s situation. He did not wish to influence the children’s views about her, nor impose his views on her past. The difficulty for the children is that their mother has not given them information about this. They have been left with no explanation for why their mother is in and out of their lives.
Both parents accept that it is important the children have information about their parent’s vulnerabilities, provided in an age-appropriate way. The Child Impact Report referred to services such as Children of Parents with Mental Illness (COPMI). The parents were provided with information about the availability of services within their area by my Associate at the conclusion of the hearing. The ICL also indicated that he was able to provide the parents with a telephone number to call for an appointment. Although orders will be made about this, I expect that the parents have already pursued this service for the children.
It is understandable that it is an extremely difficult subject for parents to broach with children. It involves revealing their own vulnerabilities. For these children it is critical. It would assist X to understand why there is inconsistency in time with her mother, and that it is not caused by her rejecting them, for example.
The maternal grandparents have been involved with the children all their lives. They have provided support to them at times their mother required assistance in caring for them. I accept they have a good relationship.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The father has taken opportunities to be involved in all aspects of the children’s lives. There have been gaps in that engagement when the children were infants living with their mother. During the period of 2016 /2017 he was dealing with problems of addiction, and was not participating fully in their lives.
The mother has not taken all opportunities available when dealing with her mental health and drug misuse problems. There is no issue that the father has made appropriate decisions for them.
Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The children have been supported by their father. The mother pays child support for the children, and is currently assessed to pay $349 per week for the two children.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The father seeks that the children live with him, and there be no order for time with their mother. If orders are made for time, he proposes they live with their mother and he not see them. Either of these outcomes would be damaging for the children. Were they to live with the mother, a report would be required to the Department of Communities and Justice. It is unclear that the mother would cope. She has not cared for them fulltime for years. I refer to her history of mental health and drug problems detailed above.
The father wants to prevent further litigation. Given the history outlined, that is entirely understandable. Litigation is costly in many respects: time, money and emotional resources. As the father has indicated, that burden is born by the whole family, including children not the subject of litigation.
No order for time does not guarantee no further litigation. The mother could bring proceedings that there has been a significant and substantial change of circumstances, whatever orders are made. Were the father to walk away from the children there may be proceedings in another court, brought by the Department of Communities and Justice. It is certain that were the children to be separated from their father, and the family they have lived with the majority of their lives, they would be devastated. This is likely to have lifelong consequences for them.
As the children age their views take on more significance. That makes it less likely that litigation will serve a purpose, but it does not prevent the filing of an application.
Given the history of loving care provided to the children by Mr Brooker and Ms D, I do not believe he would abandon them. I accept that he has not taken this position to attempt to blackmail the court into ordering his preferred outcome. I accept that he has his own vulnerabilities, and is mindful of that. He is attempting to buffer his two younger children from the impact of further litigation, with the stress it places on him, and the whole family. I accept that parents stressed by managing litigation, or inconsistent time arrangements, do not perform at their best for any child.
If there is no order for time with their mother the children will miss her, and likely worry about her. As I have indicated they have maintained a relationship with her through electronic communication. I accept that it is in their best interests for their relationship with her to continue. Given the stance Mr Brooker has taken to date about not intruding with explanations of her conduct to the children, it is difficult to know what he would tell them. I accept the evidence of the Court Child Expert that severing the relationship with their mother would likely cause the children long term emotional issues. It may impact on their sense of self identity. This may result in poor psychological outcomes for them.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
A consideration of this factor does not assist in a determination of the issues.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent of other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
The father has demonstrated the capacity to meet the needs of the children, including their emotional and intellectual needs. In this he has been ably supported by Ms D.
The mother does not have the demonstrated capacity to meet the children’s needs. Dr C was optimistic about her mental health. He regarded it as positive that she was aware of her mental health deteriorating in February 2022, and voluntarily sought help. She did not resort to drug use, and was admitted for a month. I accept that this is a positive step for her recovery.
The problem is that it is likely she will continue to be absent from the children for periods, if there are time orders in place. An automatic suspension and restart of time would assist in managing this in the future.
There is no evidence that she could manage her mental health issues with full time care of the children. As the report writer observed a report to the Department of Communities and Justice would be necessary on the making of any such order.
Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
A consideration of this factor does not assist in a determination of the issues.
Section 60CC(j) any family violence involving the child or a member of the child’s family;
AND
Section 60CC(k) if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There is no current AVO, nor current issues of family violence. A consideration of this factor does not assist in a determination of the issues.
Section 60CC(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceeding in relation to the children
This is a significant factor. I have outlined the history of litigation. It has occurred over the majority of the lives of X and Y. It has occupied their parent’s emotional and financial resources.
It is not in the children’s interests for there to be further litigation. It is difficult to make orders that preclude that possibility. Orders for time may give rise to further litigation, as may orders for no time.
In my view the orders least likely to lead to further litigation are orders for short periods of time. This allows the children to know their mother, and maintain a relationship with her. If time is for daytime only it is less likely to expose the children to the risk of their mother not coping when they are with her. I accept that this is less than Y wants, but in my view it balances the risks for the children. The orders shall provide for suspension of time around admission to hospital, and positive drug tests. That is intended to preclude the need for litigation over re-starting time.
PARENTAL RESPONSIBILITY
Mr Brooker has effectively been exercising sole parental responsibility for the children for the past several years. Ms Brooker has not objected to decisions made by him, such as the school the children attend, and decisions around their participation in religious education. The parents find communication difficult. Ms Brooker’s mental health and drug use has meant there are times when she is not available to make timely decisions for the children.
These are not young children where decisions about schooling, health and the like are ahead of them. Those matters are largely resolved. Neither of the children have chronic health issues. There is no need for regular review of medications, as there may be for other children. This means there are few long term parenting decisions to be made for them into the future. As the children get older their input into decisions becomes increasingly important, such as their education.
Ms Brooker accesses information about the children’s education directly from their schools. This is the most appropriate way for that to occur, so that information provision does not become a dispute between the parents. There has never been an issue with her communication with the school.
I find that it is in the children’s best interests for there to be an order for sole parental responsibility for Mr Brooker, given the difficulties with communication between the parents. It may be that there are limited decisions he is required to make of this nature. The evidence supports that he has made appropriate, child focused decisions in the past. He shall advise Ms Brooker in writing of any long term parenting decisions made, so that she understands the circumstances of the children.
INDEPENDENT CHILDREN’S LAWYER COSTS
At the conclusion of the hearing, the ICL made an application for their costs as they are obligated to by the Legal Aid Commission of NSW. The ICL sought that each party pay the sum of $2,269 towards the costs. I accept that this is no way represents the actual costs of the representation.
The mother is employed on a full-time permanent basis as a public servant with Employer S. She pays child support as assessed.
Mr Brooker has the fulltime care of these children. He meets all the expenses for the children, assisted by child support payments. He has two younger children with his partner. He was previously privately represented, and has appeared self-represented in these proceedings.
In the circumstances of this matter, I accept that the mother has the capacity to meet the order sought by the ICL. I do not propose making that order against Mr Brooker, given his circumstances.
CONCLUSION
The orders are intended to balance the children’s need for a relationship with their mother with their need to be protected from their mother’s mental health and drug misuse difficulties. I have referred at length in these reasons to the amount of litigation that has occurred in the lives of these children. It needs to cease.
I understand their father’s anguish that litigation may continue, with the ramifications that would have for all of his family. In my view the answer is not to have no orders for time, but to provide time that is manageable for the mother, and children. History would suggest Ms Brooker will have further admissions to hospital. Although it is hoped that would be on a voluntary basis, it may not. A mechanism for suspension and restarting time should assist the parties and children in navigating that.
As has been expressed elsewhere in these reasons, these children need an explanation of their mother’s absences from their lives. There are services which can assist in the provision of that information. They need to develop an understanding of the significance of mental health problems, appropriate to their ages. I have no doubt that the father will provide them with guidance and support to come to an understanding of these issues.
Having had the opportunity to observe the father over the course of this hearing, I am satisfied that he is a diligent and responsible parent, well assisted in that role by Ms D. I expect he will consider the implications for all four of his children were he to refuse to continue to have X and Y live with him, and not take that course.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boyle. Associate:
Dated: 25 August 2022
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