BRYAN & SLOAN
[2017] FamCA 962
•29 November, 2017
FAMILY COURT OF AUSTRALIA
| BRYAN & SLOAN | [2017] FamCA 962 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the mother applied for an adjournment of the trial – Where the mother bears responsibility for her failure to obtain and adduce psychiatric evidence – Where the parties agreed at trial the Family Consultant could observe the youngest child in the father’s company – Where the adjournment application was merely an exercise in hope rather than expectation – Where the adjournment application was refused FAMILY LAW – CHILDREN – Parental responsibility – Where the parties agree an order for equal shared parental responsibility would not be in the children’s best interests – Where the residential parent of the children should have sole parental responsibility – Ordered the father shall have sole parental responsibility for the children FAMILY LAW – CHILDREN – With whom a child lives – Where the eldest child lives with the father and the youngest child lives with the mother – Where the parties failed to comply with earlier final orders and subsequent interim orders – Where the age and maturity of the eldest child enable him to decide when he spends time and communicates with the mother – Whether the benefit the youngest child would derive from living with the father would outweigh the distress she would suffer from being separated from the mother – Where a change in the youngest child’s residence will re-unite her with the eldest child and bring other benefits – Ordered the children shall live with the father FAMILY LAW – CHILDREN – With whom a child spends time – Where the mother has impaired parenting capacity due to her psychiatric and/or psychological state and lack of insight – Where the orders make no provision for the children to spend time or communicate with the mother – Where the father has authority to determine if the children spend time with the mother, which solution is a forensic strategy to avoid further litigation between the parties FAMILY LAW – CHILDREN – Family violence – Where the Court held the children are not in need of protection from harm caused by either party’s alleged family violence, physical abuse or neglect – Where the Court held the children do not need protection from harm caused by the maternal grandmother’s alleged sexual abuse |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE |
| Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175 Newlands v Newlands (2007) 37 Fam LR 103 Slater & Light (2011) 45 Fam LR 41 |
| APPLICANT: | Mr Bryan |
| RESPONDENT: | Ms Sloan |
| INDEPENDENT CHILDREN’S LAWYER: | Ashby Family Solicitors |
| FILE NUMBER: | NCC | 2553 | of | 2010 |
| DATE DELIVERED: | 29 November, 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 13, 14, 15 & 16 November, 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Rugendyke |
| SOLICITOR FOR THE APPLICANT: | Catalyst Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Allen |
| SOLICITOR FOR THE RESPONDENT: | Priority Business Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ashby Family Solicitors |
Orders
All former orders in respect of the following children are discharged:
(a)B, born … 2001; and
(b)C, born … 2005.
The father shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.
The children shall live with the father.
Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
The father shall authorise and request the principals of any schools attended by the children to provide to the mother, at her expense, copies of all school reports and school photograph order forms relating to the children.
The mother is restrained from attending the schools at which the children are enrolled without the father’s written consent.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number and email address.
Within seven days hereof the parties shall cause the children to be delivered to the Independent Children’s Lawyer and the Family Consultant to have explained to them the effect of these orders and the reasons for such orders.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all other outstanding applications are dismissed.
Notation
(A)These orders intentionally make no provision for the children to spend time or communicate with the mother. To the extent they each remain amenable to parental direction, decisions about if, when and how the children interact with the mother shall be made by the father under the authority conferred upon him by Order 2 hereof.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bryan & Sloan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2553 of 2010
| Mr Bryan |
Applicant
And
| Ms Sloan |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings comprise a dispute between the applicant father and the respondent mother over their two children under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Regrettably, this is their second such litigious dispute. The first was finalised by consent orders made by the Federal Magistrates Court (as the Federal Circuit Court then was) in June 2011, but neither party faithfully complied with those orders. In 2014, the eldest child began living with the father and he has since barely seen the mother or his sibling. The youngest child remained with the mother but, not long afterwards, she ceased spending time with the father.
Until the cusp of the trial, each party wanted the children re-united in the same household and to exercise exclusive parental responsibility for them. That remained the father’s proposal, but the mother belatedly proposed the children should retain separate residences.
While both parties purported to countenance the possibility of the youngest child spending some time with the non-residential parent, the pre-conditions they each mooted in cross-examination were so restrictive there was no realistic prospect of it occurring. The parties’ distrust and animosity was so deeply entrenched that one parent will almost inevitably be eliminated from the youngest child’s life. The dilemma for the youngest child was whether the extra benefit she would derive from living with the father would outweigh the distress she will suffer through being separated from the mother.
As for the eldest child, it was common ground he should remain living with the father. His age and maturity enable him to decide for himself if and when he will spend any time with the mother.
Background
The parties commenced a de facto relationship in about 2000, married in 2004, and separated in 2007.
The children were born in 2001 and 2005 and are now aged 16 and 12 years respectively.
Although the parties separated in 2007, it was not until January 2011 that the mother commenced the first proceedings before the Federal Magistrates Court. Those proceedings were finalised, with the parties’ consent, several months later in June 2011. The orders provided for the parties to have equal shared parental responsibility for the children, for the children to live with the mother, and for them to spend substantial amounts of time with the father.
The eldest child voluntarily moved to live with the father in about April 2014.[1] The youngest child remained living with the mother, but she terminated the visits between the youngest child and the father in May 2014.[2] In November 2014, the mother and the youngest child stayed with the father and the eldest child for several days when they had nowhere else to live but, after they moved out, neither child had much, if any, contact with the non-residential parent.[3]
[1] Mother’s affidavit, para 48; Father’s affidavit, para 54
[2] Mother’s affidavit, paras 52-53; Father’s affidavit, paras 56-58
[3] Mother’s affidavit, paras 54-56; Father’s affidavit, paras 59-61
The father commenced these proceedings before the Federal Circuit Court in September 2015. He attributed the delay in instituting the proceedings to complications with his application for legal aid and his legal representation. Once the proceedings commenced, in October 2015, the Federal Circuit Court made a location order. The mother was then located and she engaged with the litigation.
In March 2016, the Federal Circuit Court ordered the parties to ensure the children spend time together each alternate Saturday under independent supervision. Unfortunately, the order was rarely implemented. After the Family Report was prepared in November 2016, the Federal Circuit Court transferred the proceedings to this Court for determination.
The proceedings were listed for trial in this Court in September 2017, but the trial was vacated at the mother’s request pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW), due to her pending appeal against the revocation of her grant of legal aid. The trial was re-listed in November 2017.
Adjournment application
At trial, the mother was represented by counsel and solicitor, even though her appeal against the decision to terminate her grant of legal aid was apparently dismissed.
With her legal representation in place and her affidavit evidence filed and served, the mother was ostensibly ready for trial but, before the trial commenced, she applied for an adjournment, essentially for two reasons. She failed to adduce any psychiatric evidence and it was contended she now understood it was desirable for her to adduce such expert evidence to vindicate her belief she is currently in sound psychiatric health, and secondly, the Family Consultant needed to observe the youngest child in the father’s company to evaluate the quality of their relationship. The adjournment application was opposed by both the father and the Independent Children’s Lawyer and it was refused for the following reasons.
The only reason the youngest child was not seen in the father’s company by the Family Consultant in October 2016 was that the mother took the child and petulantly departed the consultation session due to her dissatisfaction with the Family Consultant’s manner.[4] The mother did not recant her umbrage and later ask the Court to order the preparation of an updated Family Report. It was only at trial, over a year later, that she suggested the Family Consultant should have the opportunity to see and assess the youngest child in the father’s company. Once the mother’s adjournment application was dismissed, the trial proceeded and agreement was reached between the parties and Independent Children’s Lawyer for the Family Consultant to observe the youngest child in the father’s company, which development retrospectively cured the second reason advanced by the mother for the proposed adjournment.
[4] Mother’s affidavit, para 92
The mother’s psychiatric condition was a contentious issue in the last proceedings concluded in 2011 and remained so in these proceedings. The mother told the Family Consultant in October 2016 she was “keen to be assessed by a psychiatrist in order to convince the Court she no longer suffers from a psychiatric illness”,[5] but she did not procure or submit to any such assessment. She did not seek the appointment of a single expert psychiatrist for that purpose, either when the proceedings were before the Federal Circuit Court or after the transfer of the proceedings to this Court. In April 2016, procedural orders were made fixing the matter for trial. At the mother’s request, an order was then made permitting her to adduce evidence from her treating psychiatrist,[6] but she failed to avail herself of that permission. Self-evidently, she had plenty of time within which to obtain favourable psychiatric evidence, so she bears responsibility for the failure to obtain and adduce it.
[5] Second Family Report, paras 11, 47
[6] Order 7(b) made on 27 April 2017
The proposal to adjourn the trial to enable the mother more time within which to obtain such psychiatric evidence implicitly assumed the evidence would be favourable and assist her case, but that is not an assumption which could safely be made. The mother did not dispute she was diagnosed with a psychiatric illness some years ago and, although she doubted the validity of the diagnosis, she did not contend that more recent or better psychiatric evidence already existed to discount or contradict the earlier diagnosis. She was merely hopeful that, if she had more time within which to engage a single expert psychiatrist, the new diagnosis might be different. The proposed adjournment was therefore merely an exercise in hope rather than expectation. There was every chance the mother’s position in the litigation would not have been improved by the adjournment.
If the adjournment was granted, even assuming the mother’s financial capacity to pay for the single expert report and the reasonably expeditious provision of the report, any fresh trial dates were some four to five months away. More delay in this case was liable to be determinative, since the youngest child has not seen the father for the past three years. The passage of even more time would only ossify the deadlock and sterilise any last vestige of the Court’s remedial power.
The timely resolution of litigation serves the public as a whole not merely the parties involved in it and, in particular, litigation pertaining to children should be speedily determined (see Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175 at 217, 223). The schism in this family has existed for three years and the litigation has been pending for over two years. The trial was first fixed for September 2017 and then adjourned once on the mother’s application because of the termination of her grant of legal aid. Despite her unsuccessful appeal against the revocation of her grant of legal aid, she managed to arrange her legal representation for the second trial in November 2017, but her reasons for another adjournment were unpersuasive. Her asserted unreadiness for trial was due entirely to her own deliberate acts or omissions, for which responsibility should rest with her. The children are both old enough to know of and be worried by the unresolved litigation over their future. Their interests were best served by final determination of the dispute, as that would likely eradicate the anxiety they must presently feel. The father and Independent Children’s Lawyer were both funded by legal aid, so further impost upon the public purse was avoided by determination of the proceedings.
Proposals
The father abandoned the proposed orders set out within his Initiating Application filed on 4 September 2015 and instead sought the orders set out in the minute of orders he filed at the commencement of trial.[7] He wanted both children to live with him and to have sole parental responsibility for them. He proposed the eldest child should only spend time with the mother at the child’s election. As for the youngest child, he proposed she could only spend time with the mother pursuant to agreement between the parties and only after an initial embargo period of three months to enable her residence to be stably established with him. His evidence in cross-examination, however, revealed the pre-conditions to his grant of consent for the youngest child to spend time with the mother were so complicated and discretionary as to be tantamount to no consent at all.
[7] Exhibit F1
The mother abandoned the proposed orders set out within her Amended Response filed on 30 May 2017 and instead sought the orders set out in the minute of orders she filed on the second day of trial.[8] In respect of the eldest child, she proposed that he live with the father and that he should spend time with her at his election. She wanted the parties to retain parental responsibility for him, presumably as conferred by law (s 61C). In respect of the youngest child, she proposed that she have sole parental responsibility for her, that the child live with her, and that she should spend no time with the father. There was no ambiguity in her proposal. She wanted the status quo maintained.
[8] Exhibit M2
The Independent Children’s Lawyer did not begin the trial with any fixed view about the outcome, but did rule out the possibility of the parties sharing parental responsibility for either child. After the evidence was closed, the Independent Children’s Lawyer tendered the minute of orders she proposed.[9] In essence, she supported the father. She proposed he should have sole parental responsibility for both children, they should live with him, and no orders should be made to specify the circumstances under which they might spend time with the mother, leaving that to the father’s judgment.
[9] Exhibit ICL2
Evidence
The father relied upon:
(a)His affidavit filed on 3 August 2017; and
(b)The affidavit of the maternal (not the paternal) grandmother filed on 3 August 2017. Curiously, the maternal grandmother and mother are estranged, but the maternal grandmother maintains cordial and mutually supportive relations with the father.
The mother relied upon:
(a)Her affidavit filed on 20 October 2017; and
(b)The affidavit of the maternal grandfather filed on 20 October 2017.
As already noted, the mother did not avail herself of the leave granted to adduce evidence from her treating psychiatrist.
The parties and the Independent Children’s Lawyer also relied upon:
(a)The Memorandum prepared on 23 February 2016 by a Family Consultant who was not required for cross-examination; and
(b)The two Family Reports dated 16 May 2011 and 20 October 2016 prepared by the Family Consultant who was cross-examined, though the first report was not the subject of a solitary question and was only mentioned briefly in final submissions.
Following agreement between the parties and the Independent Children’s Lawyer at trial, the Family Consultant observed the youngest child in the father’s company and reported orally about that observation. The parties’ motivations for their agreement to that process were obviously quite different. The mother probably anticipated the observation would prove the youngest child’s estrangement from the father is realistic, whereas the father probably anticipated the youngest child’s resistance would dissolve, proving that her estrangement from him over the past three years was an artifice.
Legal principles
Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Children’s best interests – primary considerations
Section 60CC(2)(a)
The parties conducted the proceedings on the basis that the children have meaningful relationships with their respective residential parent, so the dispute distilled to the quality of the children’s relationships with the non-residential parent.
The father acknowledged the eldest child does have a meaningful relationship with the mother, but he contended it was not as important to the child as was his relationship with him. Most probably, that fairly characterised the eldest child’s perception of the quality of his relationships with the parties. The mother did not submit to the contrary. She is hopeful her relationship with the eldest child can be repaired, but she has no immediate expectation of it.
Similarly, the youngest child’s relationship with the mother is probably more important to her than her relationship with the father, but two caveats apply. First, the evidence suggested she may not derive the degree of benefit she desirably should from her relationship with the mother, and second, the evidence suggests her relationship with the mother comes at the expense of her relationship with the father.
When the youngest child was first seen by the Family Consultant in May 2011, she was sullen, cried, clung to the mother, and objected strongly to separation from her.[10] The Family Consultant was extremely concerned about her psychological stress and imputed her behaviour was the “beginnings of an alignment situation”.[11] Under the consent orders made in June 2011, the youngest child remained living with the mother. Some years later, in 2015, the youngest child attended counselling. The counsellor’s notes record that, even though the child was then aged 10 years, she was emotionally unsettled and still slept with the mother. The Family Consultant reported the notes:[12]
…indicate [the youngest child] had difficulty separating from the mother, suffered from emotional lability and was not able to sleep alone.
[10] First Family Report, paras 98, 99
[11] First Family Report, para 103
[12] Second Family Report, para 62
The mother confirmed with the Family Consultant in October 2016 that the youngest child still slept with her every night and had “major separation issues”.[13] There has been some improvement over the last year though because the Family Consultant reported that, when she observed the youngest child in November 2017, she separated from the mother easily. Nevertheless, even if the problem has abated to some extent, the inability of a child of that age and maturity to separate from her primary carer until only relatively recently tends to indicate some maladjustment in their psychological attachment.
[13] Memorandum, page 2
The Family Consultant said the youngest child and mother were in a “very enmeshed” relationship, as evidenced by their mutual emotional dependence. The mother recently withdrew the youngest child from school so she could be “home-schooled” instead. The child has few peer relationships, she worries about the mother, and she professes no trust in anyone other than the mother. She has progressively become isolated from the father, her brother, peers, and school teachers. The Family Consultant explained the repercussions for the child remaining in such an enmeshed relationship. In summary, her self-esteem may diminish, she may experience difficulty sustaining personal relationships in later life, she may fail to develop her own sense of independence, and she might experience guilt about her rejection of the father. While it is not certain she will suffer those consequences, the longer she lives with the mother the greater the chances of occurrence. Obviously enough, she would benefit from alleviation of the risk of her development of those adverse psychological consequences.
When asked by the Family Consultant whether the youngest child wants a relationship with the father, the mother could not agree. She answered the child was scared the father would abduct her.[14] The mother’s perception correlates with the child’s statements because she told her counsellor she did not miss the father and was fearful he would not return her to the mother if she spent time with him.[15] She told her sibling much the same[16] and repeated it to the Family Consultant at their meeting in November 2017. The mother submitted such comments by the youngest child manifested her actual past experience with the father, but that was not so. There was no real evidence the father ever abducted the youngest child and the only time he ever retained her in his care was many years ago when the mother threatened to take both children and relocate their residence a long distance away on the border of NSW and Victoria. The most probable explanation for why the youngest child feels such apprehension about the father is that the mother needlessly induces it. The mother told the Family Consultant in October 2016 she believed the children could only spend supervised time with the father but, when pressed, was unable to sensibly articulate why.[17] The mother obviously feels apprehensive about the children’s safety with the father and, having lived exclusively with the mother, the youngest child has been inculcated with similar apprehension.
[14] Second Family Report, para 62
[15] Second Family Report, para 62
[16] Second Family Report, para 52
[17] Second Family Report, para 64
It was safe for the child to tell her counsellor, her sibling, and the Family Consultant of her fear of the father, because she is not spending any time or communicating with him and she did not therefore risk any embarrassment by him confronting her over the expression of such sentiments. But whether her expressed sentiments genuinely reflected her own experience or were merely the recitation of the sentiments she thinks the mother expects of her is a different question altogether.
Unfortunately, until she changed her mind at trial in November 2017, the mother prevented the Family Consultant from assessing whether or not the youngest child’s expressed apprehension about the father is genuine and, even if so, whether her relationship with him is capable of successful restoration. The mother refused the Family Consultant’s request to allow the youngest child to be interviewed and observed in the father’s company in October 2016, ostensibly because “she did not think [the child] would want this [to occur]”. She took the child and left the building.[18]
[18] Second Family Report, para 65
The Family Consultant was given the opportunity to observe the youngest child in the father’s company in November 2017 and her demeanour was equivocal. She was tearful at the prospect of seeing him and was also tearful when introduced to him. She told the father she did not trust him and eventually departed the session without farewell, despite the father’s request for a hug. However, during the session, the child shouted at the father “why did you leave mum…why did you leave us?” which implied she regretted his absence from her life. Significantly, she did not tell him she did not want to see him. Most probably, her estrangement from him is realistic, though artificially induced. She certainly does feel hurt and indignant about his absence from her life, which she was keen for him to know, but she unfairly blames him for her abandonment when in fact the responsibility rests principally with the mother for terminating, or at least frustrating, their contact. The mother has induced a situation in which the youngest child feels the need to demonstrate allegiance to one parent and, since she lives with the mother, the easiest way for her to alleviate the stress of the situation is to show loyalty to the mother and reject the father. She realises she does not have the mother’s emotional permission to enjoy healthy relationships with both parents.
The father told the Family Consultant the youngest child enjoyed an “excellent relationship” with him up until the mother terminated her visits in late 2014.[19] There is no reason to doubt the correctness of the fact. The youngest child’s relationship with him is most probably still meaningful to her, but she does not presently derive any benefit from it. Restoration of the relationship and the child’s derivation of benefit from it still seem feasible, but only if the child moves to live with the father, and other considerations bear upon whether that outcome would be best for her. In particular, the reversal of her residence would most likely rob her of the benefit she derives from her relationship with the mother, because the father will not allow them to spend time together for the foreseeable future either.
[19] Memorandum, page 2
Section 60CC(2)(b)
The mother adduced evidence which was clearly designed to demonstrate the children are in need of protection against physical or psychological harm they are at risk of suffering by reason of their subjection or exposure to the father’s family violence, physical abuse, and neglect, and additionally, the maternal grandmother’s sexual abuse. Conversely, the father contended the children were in need of protection against harm they are at risk of suffering by reason of their subjection to the mother’s family violence and abuse.
Family violence
The mother submitted in her Case Outline that the father “physically, verbally and emotionally” abused her on many occasions. Of course, that was merely her stated perception, not an observation of fact. The evidence she adduced to vindicate the submission related to events she alleged occurred prior to their separation in 2007 and, even if after separation, prior to the parenting orders upon which they agreed in June 2011. As would be obvious, it was illogical for her to complain about such historical incidents when she willingly agreed to orders under which the children would spend substantial amounts of time with the father and the parties would share parental responsibility for them.
The incidents of which she complained which could possibly amount to “family violence” after the orders were made in June 2011 occurred only shortly afterwards,[20] at the eldest child’s football match in 2013,[21] and in November 2014.[22] Her first allegation related to threatening telephone calls, the second related to an argument over the children that involved no physical violence, and the third related to an argument over the need for the mother to remove herself from the father’s home and involved no physical violence by the father. The father’s versions of those incidents were very different, but it was really quite unnecessary to make any factual findings about the incidents. First, no findings were sought, but more importantly, it was common ground the parties have had no contact of any sort since November 2014, let alone conflictual contact. In such circumstances, while the parties’ mutual animosity is undiminished, it is hardly likely the children are at any present risk of exposure to family violence between the parties. Ultimately, it was not submitted otherwise.
[20] Mother’s affidavit, para 34
[21] Mother’s affidavit, para 42
[22] Mother’s affidavit, para 56
The eldest child reported that, while he lived with the mother, she caused damage to a door in their home in a fit of rage,[23] which she admitted, though she unconvincingly trivialised it.[24] The eldest child told the Family Consultant how the mother raged at both children and he could no longer live with her because she was “too violent”.[25] The evidence was credible because the maternal grandmother independently reported the mother acted violently in the past when they lived together.[26] The maternal grandmother was not challenged about the truth of that report when she was cross-examined.
[23] Second Family Report, para 27; Father’s affidavit, para 53
[24] Second Family Report, para 54
[25] Second Family Report, paras 53, 69
[26] Second Family Report, para 49
The removal of the eldest child from the mother’s home may have stabilised her domestic environment. There was no evidence the youngest child has been exposed to any family violence perpetrated by the mother since November 2014 and, with the intervening lapse of three years, the antecedent allegations of family violence do not validly permit any inference it still now occurs in the mother’s home. It was not contended otherwise.
Physical abuse
The mother submitted in her Case Outline that the father “physically, verbally and emotionally” abused the children on many occasions. Similarly, some of the evidence the mother adduced in an apparent effort to prove the submission related to incidents which pre-dated the consent orders made in June 2011. Obviously enough, the mother must have agreed those orders advanced the children’s best interests, regardless of her allegations of the father’s prior behaviour. Alternatively, if she believed the orders placed the children at risk of harm but agreed to the orders irrespective, she cannot be taken seriously.
Save for one exception, the incidents of which the mother complained after the orders were made in June 2011 did not amount to “abuse” (s 4(1)). Rather, they were complaints about her perception of the way in which the father inveigled the children’s complicity and undermined her authority.[27] The only exception related to an incident in May 2014, when the mother voluntarily left the children in the father’s care for a week, while she was admitted to hospital for elective surgery. She alleged the eldest child had a black eye, which the father supposedly admitted causing by striking him.[28] In cross-examination, the father denied he hit the eldest child or that he had a black eye. Neither party was corroborated. Significantly, the mother thereafter acted in a way which was inconsistent with her enduring concern about the eldest child’s safety. She acquiesced to his permanent residence with the father, she did not commence proceedings to recover his residence, she made no report to the police or child welfare authority about the incident, and she even took the youngest child with her to live with the father for a short period in November 2014.
[27] Mother’s affidavit, paras 33, 36, 41
[28] Mother’s affidavit, para 52
The eldest child confirmed the mother kicked him in the testicles during an argument between them while he lived with her.[29] The mother denied she did so, but she did admit it may have occurred unintentionally during a fierce physical confrontation between them. She admitted that, as a reflex defensive action, she drew up her knee and felt her shin “brush against him”.[30]
[29] Second Family Report, paras 27, 53
[30] Mother’s affidavit, paras 44, 94(b)
There was no evidence the mother ever physically abused the youngest child and no proper basis to infer the youngest child is at any risk of physical abuse by her, based merely on past violent confrontations between the mother and eldest child. That problem was rectified by the eldest child deciding to move and live with the father more than three years ago in 2014.
Sexual abuse
The mother alleged that, some years ago, she witnessed the maternal grandmother sexually abuse the youngest child by stimulating her genitals while she was in the bath. The mother was challenged over her fabrication of the incident, but it is reasonably plain she now genuinely believes in what she thinks she saw, though that does not mean her belief is factually correct. The honesty of her belief was collectively established by her resentful departure from the maternal grandmother’s house that night, her voluntary estrangement from the maternal grandmother from about that time, her willingness to openly accuse the maternal grandmother of the sexual abuse,[31] her commencement of a compensation claim for the child,[32] and the fervour of her oral evidence about the incident. Nonetheless, there were other intriguing aspects to the evidence about the incident which created considerable doubt about its occurrence.
[31] Affidavit of the maternal grandmother, para 19; Mother’s affidavit, page 27 of 50
[32] Mother’s affidavit, para 101
Despite the mother’s estrangement from the maternal grandmother, she occasionally allowed her to afterwards care for the two children and she even took the children to live with her for a period of about four to six months. Such behaviour was difficult, if not impossible, to reconcile with her belief the children were at risk of sexual abuse by the maternal grandmother.
The mother also gave inconsistent accounts about both how and when the incident occurred. She deposed to the maternal grandmother holding and using a bar of soap to stimulate the youngest child’s genitals,[33] but she earlier reported to the child welfare authority that the maternal grandmother used her free hand to masturbate the child’s genitals,[34] which discrepancy was irreconcilable. The mother’s estimates about when the incident occurred, according to her reports to the child welfare authority and the Family Consultant, varied between 2009 and 2011. On any account of it, the incident occurred before the first Family Report was compiled in 2011, but she was then unable to explain why she did not raise the issue with the Family Consultant at that time.[35] When she was cross-examined about when the incident occurred, she said she was “not 100 per cent sure”, and further, she could not recall when she told the Family Consultant the incident occurred.
[33] Mother’s affidavit, para 29
[34] Exhibits F2, F3
[35] Memorandum, page 1; Second Family Report, para 56; Exhibits F2
The mother’s delay in reporting the incident to the authorities for investigation was also curious. She did not report it until December 2014 – several years after the incident occurred on any version of it.[36] In cross-examination, the mother said she reported the incident to the authorities “as soon as I could get help in the community”, which was hardly a convincing explanation. It was puzzling why she needed “courage or support” from another adult to report the alleged abuse of her daughter.[37] Perhaps significantly, the report to the authorities in December 2014 coincided with the parties’ argument in November 2014 that led to the mother and youngest child vacating the father’s household, so the report may only have been made for strategic advantage.
[36] Exhibits F2, F3
[37] Mother’s affidavit, para 57
The maternal grandmother denied her commission of the sexual abuse to the Family Consultant,[38] in her affidavit,[39] and in cross-examination. Her oral evidence was confident, measured, and credible. Although the mother alleged the maternal grandmother admitted her commission of the offence to a counsellor in her presence,[40] it seems most unlikely. Any counsellor would likely have been mandated to report such an admission to the authorities. The mother knew the maternal grandmother denied the allegation, yet she did not attempt to tender the counsellor’s records to contradict her.
[38] Second Family Report, para 10
[39] Affidavit of the maternal grandmother, para 13
[40] Mother’s affidavit, para 77
Irrespective of the mother’s apparent genuine belief about the maternal grandmother’s sexual abuse of the youngest child, the evidence fell far short of proving it occurred on the balance of probabilities. The disparity between the unlikelihood of the incident and the honesty of the mother’s current belief in its occurrence is only conjectural, but the explanation may lie in the mother’s unstable mental health, which is an issue yet to be addressed.
Neglect
The mother contended in her Case Outline that the father neglected the children, both physically and financially, on many occasions. The evidence she adduced to substantiate that submission amounted, in part, to her dissatisfaction with the level of his attention to the children’s personal hygiene years ago before the consent orders were made in June 2011,[41] which is meaningless now because of their ages. Otherwise, her complaints were about ordinary childhood misadventure,[42] the eldest child’s past school absences,[43] and the father’s failure to pay her child support when both children formerly lived with her.[44] The prospect of the children suffering harm by reason of the father’s neglect if they live with him was not the subject of any final submission.
[41] Mother’s affidavit, paras 22, 23
[42] Mother’s affidavit, para 35
[43] Mother’s affidavit, para 40
[44] Mother’s affidavit, paras 58, 59
The father also contended in his Case Outline that the children were at risk of psychological harm due to the mother’s neglect but that contention was similarly not pursued in final submissions.
Suffice to say, none of the evidence came close to substantiating that the children are in current need of protection against physical or psychological harm they could suffer by virtue of the parties’ “neglect”, which term has a certain meaning (see Slater & Light (2011) 45 Fam LR 41 at [39]-[40]).
Conclusions
The evidence does not reasonably permit any conclusion that the children need protection from harm caused by:
(a)Exposure to the father’s family violence;
(b)Subjection to the father’s physical abuse; or
(c)Subjection to the father’s neglect.
The evidence does not reasonably permit any conclusion that the children need protection from harm caused by subjection to the maternal grandmother’s sexual abuse.
The evidence does not reasonably permit any conclusion that the youngest child is in need of protection from harm caused by:
(a)Subjection or exposure to the mother’s family violence;
(b)Subjection to the mother’s physical abuse; or
(c)Subjection to the mother’s neglect.
The Independent Children’s Lawyer eventually contended the mother’s conduct as a parent was liable to amount to “abuse”, as defined in the Act (s 4(1)), because it caused the youngest child to suffer “serious psychological harm”, but the submission is rejected. The father expressly abandoned the similar submission foreshadowed in his Case Outline. The Family Consultant warned only of the possible psychological consequences for the youngest child if she remains resident with the mother. She did not confirm the mother had already caused such harm to the child or that it was probable she would do so.
By reason of those findings, s 60CC(2)(b) of the Act is not engaged as an influential consideration in the proceedings.
Children’s best interests – additional considerations
Section 60CC(3)(a)
The eldest child told the Family Consultant he wanted to continue living with the father and, while he would prefer his sibling to live with them, if she remains living with the mother, he was prepared to spend time with them. Although he has only rarely done so over the past three years, he explained he would feel more comfortable visiting the mother and his sibling if final orders are in place affirmatively establishing his residence with the father.[45] His explanation was not fanciful because the orders made in June 2011, which formally established his residence with the mother, have never been discharged.
[45] Second Family Report, paras 69, 78
The eldest child is now verging on 16 years of age. He presented to the Family Consultant as respectful, measured and thoughtful, without undue influence by the father, so she considered his views should be given weight.[46] The Family Consultant was not challenged about the efficacy of those views and so they are accepted as correct. Considerable weight is attributed to the eldest child’s views, not least because he is now of an age and level of maturity which practically forecloses orders that bind him to live or spend time with the mother against his wishes.
[46] Second Family Report, paras 67, 86
The youngest child wants to remain living with the mother. She told both the Independent Children’s Lawyer and Family Consultant that within the last week. She also now expresses clear views (though not to the father directly) against being forced to spend time with him. Her views about the father have vacillated in the past. In February 2016, she initially told the Family Consultant she “might want to spend some time” with him, but then said she did not want to see him at Court that day. She agreed she had enjoyed spending time with him in the past and there was no “specific reason” why she stopped doing so.[47] In November 2017, she told the Family Consultant she did not want to spend time with him, but the comments she made directly to him appeared to betray her regret she had been unable to do so. The bravado of denying interest in the father would be one obvious way she might try and hide her disappointment at not seeing him.
[47] Memorandum, page 3
While the youngest child would prefer to remain living with the mother and to perhaps not see the father, her expressed preference could conceivably be due as much to her resistance to any change in her life as to an honest rejection of him. She does not yet have the maturity to fully understand how her views are liable to be moulded by the mother’s attitude rather than independently formed by her own experience. The youngest child’s views do not carry much weight, aside from proving she would certainly be distressed by any fundamental change to her current residence.
Section 60CC(3)(b)
The nature of the children’s relationships with the parents has already been addressed under s 60CC(2)(a). There is nothing to add.
The eldest child is close to the maternal grandmother, who is aligned with the father, but not the maternal grandfather, who is aligned with the mother.
Conversely, the youngest child is close to the maternal grandfather, but not the maternal grandmother.
Section 60CC(3)(c)
Since at least November 2014, the father has effectively excluded the mother from the eldest child’s life and the mother has surely excluded the father from the youngest child’s life.
Section 60CC(3)(ca)
Neither party pays any child support to the other.[48] It was not contended that was an influential consideration. Neither party enjoys particularly favourable financial circumstances.
[48] Second Family Report, para 17
Section 60CC(3)(d)
The likely effect of any changes in the youngest child’s circumstances was a pivotal issue in the proceedings. Several serious consequences will inevitably flow from any reversal of the youngest child’s residence – some deleterious, but some advantageous. First, she will be separated from the mother with little or no prospect of maintaining any contact with her. Second, she will then live with the father and her brother, both of whom have close relationships with the maternal grandmother, whom she apparently believes molested her and with whom she wants no contact. Third, she will, however, be able to restore her relationship with her brother, which would be virtually impossible if she remains with the mother.
Acceptance of the Family Consultant’s evidence about the youngest child’s enmeshment with the mother means that, although she would accrue some benefit from their separation, she would be grievously distressed by it. She has forged an emotional alliance with the mother which will cause her pain if ruptured. She told the Family Consultant she would be very worried about the mother if she was ordered to live with the father. Although she did not articulate why she feels she would be at risk in the father’s care, she told the Family Consultant she did not want to see him and she felt he was dangerous. Her dual concern of leaving the mother and living with the father would cause her considerable emotional upheaval. So much was admitted by the father. The real question was whether her distress would be transient or enduring. The Family Consultant considered her distress would abate over a period of months and be assuaged by her submission to counselling. She gave the impression she considered such therapy would be integral to the success of any transition.
The Independent Children’s Lawyer proposed orders compelling the father to ensure the youngest child is furnished with counselling, as he said he would do.[49] However, the mother contended the father’s failure to adhere to past orders left little room for confidence he would resort to the use of counselling to help the child cope with the residential transition and, therefore, the assumed absence of any therapeutic assistance for the youngest child was a compelling reason why her residence should not be reversed. There was force in the argument, but the father only presented as bombastic, not idiotic. In the event of reversal of the youngest child’s residence, he might be disinclined to incur the inconvenience of arranging therapy for her if he believes she is coping adequately, but if he perceives any risk of her flight he would likely arrange the counselling to try and avert her return to the mother.
[49] Father’s affidavit, para 118
The father envisaged that, if the youngest child lived with him, she could only safely spend time with the mother if numerous conditions were first fulfilled: the mother submits to psychiatric or psychological assessment; she submits to counselling for not less than 12 months; she takes all the medication prescribed for her; she submits to regular urinalysis; the results of all those interventions are provided to him so he may discuss with the youngest child’s counsellor the possibility of her starting to spend time with the mother; and finally, the final decision as to if, when and how she does spend time with the mother is left to his unilateral discretion. That was how he explained he would implement an order in the form he proposed which required his agreement to the youngest child spending time with the mother.[50]
[50] Exhibit F1, Order 4
Significantly for the father’s proposal, the mother denied she is afflicted by any psychiatric or psychological condition. If her denial was truthful, she lacks insight. Alternatively, her denial may have been false and she knows she does suffer mental ill health. Either way, it must follow she has no real commitment to her recovery. No person can recover from a condition, or at least keep it under control, without acceptance he/she suffers from it. The father’s expectation of the mother’s recovery as a pre-condition to the youngest child spending time with her was therefore entirely misconceived. It will likely never happen. Accordingly, if the youngest child moves to live with the father, she will probably not see the mother at all. On the other hand, if she remains with the mother, she will not see the father at all, since the mother blatantly proposed that an order be made forbidding any contact between the youngest child and the father.
If the youngest child moves to live with the father she will be aware of the maternal grandmother’s proximity, because the eldest child likes her and often spends time with her. The father also covets her emotional and financial support.[51] That presents a difficulty because the youngest child most probably believes she was sexually abused by the maternal grandmother, albeit her belief is probably wrong. The maternal grandmother, father, and eldest child all know the mother has openly stated the youngest child was once sexually abused by the maternal grandmother.[52] The mother told the Family Consultant the youngest child was actually fearful of being re-introduced to the maternal grandmother by the father,[53] which the child directly confirmed to the Family Consultant at their meeting in October 2016.[54] At their meeting in November 2017, the youngest child told the Family Consultant she knew of her sexual abuse by the maternal grandmother, which knowledge the Family Consultant apparently interpreted as her genuine belief. She would be confronted by the predicament of living in a household in which she realises her immediate family members do not believe in her sexual abuse by the maternal grandmother, but she does. How will she resolve that internal conflict?
[51] Father’s affidavit, paras 114, 119
[52] Second Family Report, paras 56, 74
[53] Second Family Report, para 62
[54] Second Family Report, para 62
The father said he would not force the youngest child to prematurely submit to contact with the maternal grandmother, but she would still likely feel tacit pressure to abandon her mistaken belief in her sexual abuse and relent to contact with the maternal grandmother sooner rather than later. Again, that was an issue about which the Family Consultant considered the child would need support from an experienced therapist.[55]
[55] Second Family Report, para 88
Of course, as the Family Consultant reported, it is psychologically abusive to the youngest child for the mother to induce her false belief of her sexual abuse,[56] but if she now genuinely believes in her molestation, attempting to disabuse her of the misconception could be just as harmful as allowing her to retain the belief and acceding to her wish to avoid any interaction with the maternal grandmother. That was an issue about which the evidence afforded little help with resolution. The most that could be hoped, if the child lives with the father, is that he exercises some sensitivity. If he does not, he risks any chance of recovering the child’s trust in him.
[56] Second Family Report, paras 57, 66, 88
The countervailing positive aspect to the reversal of the youngest child’s residence is the prospect of her re-unification with her brother, which could hardly happen if she remains living with the mother. When the children conferred with the Family Consultant in February 2016, they said they missed each other.[57] At that time, it was “very clear” to the Family Consultant that the youngest child wanted to see her brother.[58] In October 2016, the eldest child told the Family Consultant he missed his sister.[59] In November 2017, the youngest child told the Family Consultant she did not miss her brother, but she was likely lying. More probably it was only bluster to try and give re-assurance of her capacity to cope without him. If she missed her brother last year, she probably misses him now. They have had no intervening contact, so he could not have since said or done anything to change her attitude towards him.
[57] Memorandum, page 1
[58] Memorandum, page 3
[59] Second Family Report, para 72
The Family Consultant offered sage advice about the importance of sibling relationships in these terms:[60]
It is of concern that the children have been living separately from each other over the last two [now three] years, as wherever possible, siblings should not live separately as the sibling relationship is one of the longest over a lifetime and siblings share a common history and can provide significant support to each other throughout their lives. Sibling relationships can be damaged and lost over time when siblings live separately, as there is often a temptation to align with the parent they live with against the other parent and sibling.
[60] Second Family Report, para 83
That observation is particularly poignant in cases of acute parental conflict because, when parents eventually die, the siblings only have one another as sources of family comfort. It is highly desirable that the children live together in a common residence if at all possible. It is impossible for them to live together with the mother and, while there are impediments to them living together with the father, it is not impossible.
Section 60CC(3)(e)
Both parties live on the Central Coast of NSW within reasonably close proximity.[61] There would be no practical difficulty or expense in the parties regularly exchanging the youngest child between them, they are both just unwilling to do so.
[61] Second Family Report, para 16
Section 60CC(3)(f)
The mother’s impaired parenting capacity was a significant feature of the evidence and is most probably a product of several inter-related factors: her emotional ill-health and her lack of insight being the most prominent.
The mother’s emotional condition has been unstable for many years. From as early as 2006, she was prescribed medication to control paranoid schizophrenia, as she experienced auditory hallucinations over the preceding eight years.[62] The mother’s treating medical practitioner reported that her insight into her sufferance from the condition was “impaired”,[63] which seems correct, since she told the Family Consultant she attributed her schizophrenia to the father’s past abusive behaviour. One hardly needs medical expertise to doubt the cause of one person’s organic psychosis is another person’s objectionable behaviour. The mother also asserted she no longer suffers from the condition,[64] no longer needs medication for it, and admitted she ceased taking the medication without medical advice to do so.[65] She did not seem to realise she has neither the expertise nor the detachment to reliably form those conclusions.
[62] Second Family Report, paras 43-44
[63] Second Family Report, para 43
[64] Mother’s affidavit, para 66
[65] Second Family Report, paras 42, 47
The mother told the Family Consultant she was keen to be assessed by a psychiatrist in order to convince the Court she no longer suffers from a psychiatric illness[66] but, given the parties did not seek the appointment of a single expert witness to offer such expert evidence in the litigation, it made it all the more surprising the mother did not avail herself of the permission granted to adduce evidence at trial from her treating psychiatrist. She undoubtedly had treating psychiatrists,[67] even if she chooses not to consult them currently. Given the mother’s past diagnosis with paranoid schizophrenia, the absence of any expert psychiatric evidence regarding her current condition was a major defect in her case. The antiquity of the available psychiatric evidence does not permit a positive finding that she does currently suffer from a psychiatric condition but, importantly, the state of the evidence precludes any positive finding she does not still suffer from such a condition.
[66] Second Family Report, paras 11, 47
[67] Second Family Report, para 11
The mother did adduce in evidence two reports from her former psychologists (not psychiatrists),[68] but that evidence did not repair the damage. The psychologists implied their belief that her current anxious and depressive condition is in some way attributable to her experience of the father’s violence but, since the psychologists had therapeutic alliances with the mother, they only operated on the basis of the history provided by her, they were not apparently aware that she has had no contact at all with the father for the last three years, and neither of them was available for cross-examination, little weight is reposed in their opinions.
[68] Mother’s affidavit, paras 67-68
More importantly, the psychological evidence confirms the mother’s anxiety is still elevated and she still suffers from “extremely severe depression”, notwithstanding the treatment administered to her at times over the last few years. The mother admitted her condition was so debilitating she was struggling to function and she did not feel her prescribed medication was helping. One of the psychologists opined the mother still has “considerable work to do on her psychological and emotional health”.
No inference can comfortably be drawn the mother now enjoys psychological stability, as she seemed to assume would follow from the evidence. On the contrary, the evidence is consistent with her still being seriously troubled. She lied by repeatedly denying her past psychiatric ill-health,[69] which both implied she understood how her currently untreated condition might be unfavourable to her prospects in this litigation and precluded any weight being attributed to her asserted inexpert belief that she has now recovered from her mental ill-health. She was emotionally labile when interviewed by the Family Consultant.[70] She also tends to characterise the father as “demonic” (rather than simply a less capable parent than her),[71] which is perhaps significant when her auditory hallucinations have been of “demonic voices”.[72] Her denial of doing so was unpersuasive,[73] given instances of her admitted dishonesty.
[69] Second Family Report, paras 11, 40
[70] Second Family Report, para 40
[71] Second Family Report, paras 27, 32, 52
[72] Second Family Report, para 44
[73] Mother’s affidavit, para 94(h)
It is futile to speculate about whether the mother’s current psychiatric or psychological state causes or compounds her lack of insight into the children’s emotional needs because her lack of insight is troublesome of itself. It is profound and obvious from her confused approach to this litigation, as the following examples illustrate:
(a)Shortly after the eldest child voluntarily decided to live with the father, the mother decided to terminate the youngest child’s visits with the father, apparently in retribution, without apparent appreciation of the consequent emotional harm done to the youngest child. She just regarded the 2011 orders as “null and void”[74] and “unenforceable”.[75]
(b)Although she contended the children were at risk of harm in the father’s care,[76] she voluntarily left them in his care for over a week when she admitted herself to hospital for elective surgery in May 2014,[77] which must mean she either did not really believe in the risk to their safety or she did not really care about it. Either alternative is just as telling.
(c)She asserted both children needed to be supervised in the father’s care, apparently oblivious to how that was inconsistent with her acquiescence to the eldest child’s residence with the father for the last three years, and she could not sensibly articulate why their supervision was necessary.[78]
(d)She constantly denigrates the father to the children, apparently without understanding how such criticism immerses them in the parental conflict and forces them to choose allegiance with one parent over the other.[79] It is no excuse that the father may also denigrate her to the children.[80] That just means he deserves censure too, which invites consideration of his conduct, because he is not immune from criticism.
[74] Second Family Report, paras 29, 59
[75] Mother’s affidavit, page 28 of 50
[76] Second Family Report, para 61
[77] Second Family Report, para 64; Mother’s affidavit, para 52
[78] Second Family Report, paras 20, 64
[79] Second Family Report, para 27
[80] Mother’s affidavit, paras 33, 109
The father’s parenting capacity is also impaired because he does not act responsibly. He admitted his failure to comply with the 2011 orders by failing to undertake a post-separation parenting program and by failing to submit to urinalysis.[81] More recently, he failed to comply with the interim orders made in March 2016. He admitted that, merely because the eldest child said he did not want to spend time with his sister when supervised by a stranger, he acceded to the eldest child’s refusal to participate.[82] The father seemed not to appreciate the incongruity of him and the mother agreeing the children should spend supervised time together and petitioning the Court to make orders to that effect, only to let the eldest child dictate terms to him. He is the parent and he should have exerted parental authority over the eldest child, given he obviously thought the orders were made in his best interests. It was a lame excuse to blame his lawyer for the decision when he believed the children would be better off spending time together.[83] It is unlikely the father tried his best to convince the eldest child to comply with the orders, as he alleged.[84] If he did, then his best was nowhere near good enough. As a parent, he should lead, not follow the children.
[81] Second Family Report, para 5
[82] Second Family Report, paras 8, 9, 24
[83] Second Family Report, para 31
[84] Father’s affidavit, paras 82-83
Worse still, the father told the Family Consultant he will not force the children to act against their wishes in the future[85] and then he brazenly admitted in cross-examination he would deliberately flout any orders which required the youngest child to spend time with the mother if he did not consider it was safe for her to do so. It is difficult to conceive a more high-handed attitude than is demonstrated by him commencing litigation to obtain orders quelling the parenting dispute, only to inform the Court he will not comply with any orders not to his liking.
[85] Second Family Report, paras 14, 19
Section 60CC(3)(g)
It was not contended this consideration had any relevance to the outcome of the proceedings.
Section 60CC(3)(h)
The children are not indigenous Australians.
Section 60CC(3)(i)
The parties’ attitudes to the children and to the responsibilities of parenthood have already been exhaustively addressed at other points in these reasons. Nothing useful can be added.
Section 60CC(3)(j)
The issue of family violence has been addressed under s 60CC(2)(b). It is not an influential consideration.
Section 60CC(3)(k)
There are no family violence orders in existence, though family violence orders were made between the parties many years ago. It was not contended they were in any way relevant now.
Section 60CC(3)(l)
If the youngest child is moved to live with the father, there is a real risk she will rebel and voluntarily return to the mother. If that eventuates, the father would have to decide whether to commence more litigation to enforce the orders or to simply accede to the child’s will.
If orders are made for the youngest child to spend time with the mother (assuming she lives with the father), the father said he would not comply with the orders. The mother would then have to decide whether to commence more litigation to enforce the orders or to simply accede to the father’s will.
If the child remains with the mother, there is little prospect of further litigation over the children.
Section 60CC(3)(m)
No other factors were contended to be pertinent.
Conclusions and orders
When final orders were last made in June 2011, the parties were allocated equal shared parental responsibility for the children. Either the presumption of equal shared parental responsibility applied (s 61DA(1)), or alternatively, the parties considered an order in those terms would serve the children’s best interests regardless.
It was not submitted there were reasonable grounds to believe that one of the parties perpetrated family violence after the orders were made in 2011, so the presumption of equal shared parental responsibility now applies (s 61DA(2)). Irrespective, the parties, the Independent Children’s Lawyer, and the Family Consultant now uniformly believe it would not be in the children’s best interests for an order to be made vesting the parties with equal shared parental responsibility for them, or either of them. The parties have no prospect of sharing parental responsibility for the children in the manner envisaged by law (s 65DAC). A psychologist reported to the Independent Children’s Lawyer that the parties could not communicate until they had been counselled and, astonishingly, even counselling was “beyond the[ir] emotional and financial capacity”.[86]
[86] Father’s affidavit, para 86, Annexure RB1
It was mutually accepted the evidence rebutted the presumption of equal shared parental responsibility (s 61DA(4)), but the proposals differed slightly. The mother countenanced the parties’ retention of joint parental responsibility for the eldest child, which she imagined they could exercise independently,[87] but that idea is rejected. It is only feasible for one party to exercise exclusive parental responsibility for each child and, in each case, that party should be the residential parent.
[87] Exhibit M2, Order 2
The eldest child should live with the father because there was no contest about that outcome. In combination, his stronger relationship with the father, his strongly expressed desire to remain living with the father, and his physical capacity to resist any orders with which he was dissatisfied meant there was really no other option.
The determination of the youngest child’s residence largely entails weighing the contended benefits of her residence with the father against the detriment of her removal from the mother. In a rather finely balanced decision, the youngest child should live with the father. Without intending any disrespect, the father’s counsel aptly described that outcome as the “least worst option”, which fairly characterised the evidence.
The considerations which favoured her change of residence were:
(a)The Family Consultant (who has been involved with the family across a period of some six years) recommended reversal of her residence, even though she knew the child would then likely not spend any time with the mother. That was the recommendation she made in the Family Report,[88] which she endorsed in cross-examination. There was no reason to reject her opinion. The mother believed the Family Consultant was unsympathetic to her, but she did not ultimately submit her evidence should be rejected for lack of impartiality or manifest error.
(b)As the Family Consultant advised, the youngest child will have the opportunity to “individuate” while living with the father, which is an opportunity she will likely be denied if she remains living with the mother. In the father’s care, the child’s interests will expand beyond just the mother, her religion, and her home-schooling pursuits. He will probably improve her socialisation, for which conclusion there is some tangible objective evidence. Back in 2011, when both children lived with the mother, the Family Consultant found them to be distressed, angry, sullen, and psychologically stressed.[89] By comparison, in 2016, she found the eldest child to be “vastly different” after having lived with the father for the preceding two years.[90] Most probably, the eldest child’s improvement was due largely to the more emotionally stimulating environment he experienced with the father. The same prospect of improvement awaits the youngest child. She is now at a similar age to that at which the eldest child moved to live with the father.
(c)As the mother recently admitted to her psychologist, her “mental health issues were so debilitating she was struggling to function”.[91] If she is finding it so difficult to cope, little improvement can be expected in her parenting capacity. The current defects in her parenting capacity and the concomitant consequences for the youngest child, as described by the Family Consultant, are likely to persist.
(d)If the youngest child lives with the father, she will be re-united with her brother. His presence in the household will make her adjustment to the transition a little easier. The importance of their sibling relationship should not be under-estimated for the reasons explained by the Family Consultant. If the youngest child remains living with the mother, her sibling relationship with the eldest child will likely remain compromised. Currently they hardly see or communicate with one another at all. If the youngest child remains with the mother, even if the eldest child spends time with her and the mother as he suggested to the Family Consultant he would, she would likely remain aligned with the mother and probably resent her brother’s loyalty to the father.
(e)The youngest child will likely be more visible in the community if she lives with the father. He will enrol her to attend public school, where she will be monitored by teachers and peers. If she encounters problems in the residential transition, she will be seen by a wider range of people who will be able to objectively and independently assess whether some form of public intervention in her life is required. The additional benefit will be that she attends the same school as her brother and her former school friends, which will help ease her transition to the father’s home. The father will not have the child “home-schooled”, as the mother recently chose to do. Although the mother said in cross-examination she might re-enrol the child to attend another public school from next year, she pitched it as no more than a possibility at this stage.
[88] Second Family Report, para 92
[89] First Family Report, paras 91, 98, 103
[90] Second Family Report, para 67
[91] Mother’s affidavit, page 33 of 50
The considerations which favoured retention of her residence with the mother were:
(a)She would not be subjected to the stress of being extracted from the mother’s residential care, which is all she has ever known. Although the Family Consultant opined her distress would likely subside over a period of months, that was just her best estimate and it could be wrong. Unless the father offers a materially superior residential experience for her, there is no point subjecting her to the emotional upheaval.
(b)The Family Consultant believed the success of the youngest child’s transition to live with the father hinged upon her being emotionally supported by an experienced therapist. Although the father insisted he would arrange such therapy for her, his track record of compliance with court orders is poor and some considerable doubt must attend his evidence about such commitment.
(c)If the youngest child remains living with the mother there will be no need to revise her belief in her past sexual abuse by the maternal grandmother. She would then grow up falsely believing she was sexually abused, which would be unhealthy for her anyway, but at least she would not be confronted by pressure to abandon her belief and reconcile her relationship with the maternal grandmother, which will freshen the issue and challenge the validity of her emotional response to it and her faith in the mother’s judgment.
The former considerations collectively outweighed the latter considerations.
Since both children will live with the father, he will have parental responsibility for them. But he will only have exclusive parental responsibility in respect of all “major long-term issues” in their lives, as that term is defined (s 4(1)). Otherwise, each party will retain parental responsibility for the children as is conferred upon them by law (ss 61C, 61D; Newlands v Newlands (2007) 37 Fam LR 103 at [89]-[91]).
The orders oblige the father to facilitate the mother’s procurement of the children’s school reports and school photographs, about which he could have no quibble.
Although the Family Consultant previously recommended that orders be made for the youngest child to spend time with the mother,[92] that was before she knew of each party’s sworn evidence they would not obey any orders which required the youngest child to spend time with the other party until they were personally satisfied it was appropriate. No orders are made specifying the time the youngest child should spend with the mother, since the father would probably ignore the orders and the mother would probably institute further litigation to enforce them. There would be no end to the litigation. This trial was their opportunity to put an end to their dispute, which began in 2011 and from which they have had only intermittent respite.
[92] Second Family Report, paras 93, 94
The refusal to make orders specifying the time which the youngest child must spend with the mother or the way in which she should communicate with her should not be regarded as meek capitulation to the father’s arrogance. Rather, it is forensic strategy to avoid the prospect of more litigation between the parties, which the children could not readily endure. The father will now have the opportunity to exercise parental responsibility in a way that will either make or break his relationship with the youngest child. If he gloats about his perceived victory and obdurately refuses her any reasonable level of interaction with the mother indefinitely then he will probably spoil his relationship with her irretrievably. Almost inevitably, she would gravitate back to the mother when she has sufficient maturity and independence. Only if he handles the situation sensitively will he stand any chance of salvaging his relationship with the youngest child.
An injunction is made restraining the mother from attending the children’s schools, which will prevent her from frustrating the intent of the orders by trying to see the children at school. The injunction can be overridden by the father’s written consent, if he believes she should attend the school for some event to which parents are usually invited, like a concert or ceremony. The Independent Children’s Lawyer proposed such an order, without dissent.[93]
[93] Exhibit ICL2, Order 5
The Independent Children’s Lawyer proposed an order in the form of a mandatory injunction which required the father to submit the youngest child to psychological therapy, to enrol her at a local public school, and to facilitate the practice of her religious beliefs.[94] The order is not made. Those aspects of parental responsibility for the youngest child which are vested exclusively in the father permit him to make decisions about her psychological therapy, school attendance, and religious instruction. He is either sensible enough to be trusted to exercise parental responsibility for the child, or he is not, and the Independent Children’s Lawyer thought he was. He heard the Family Consultant’s evidence. If he exercises parental responsibility for her wisely, by ensuring she receives therapy, she attends public school, and she has some religious freedom, then the child’s interests will be served. If he acts unwisely, her disaffection will likely result in her voluntary return to the mother.
[94] Exhibit ICL2, Order 4
The Independent Children’s Lawyer also proposed an injunction restraining the use of corporal punishment upon the children.[95] The order is not made, though that should not be interpreted as an invitation to the parties to use physical discipline. The evidence did not require the order. The children are not at risk of harm by subjection to physical abuse by either party.
[95] Exhibit ICL2, Order 6
The mother proposed an order compelling the parties to force the eldest child’s submission to psychological therapy.[96] The purpose of the order was not explained in either the evidence or in submissions. Presumably it was designed to try and salvage the eldest child’s relationship with the mother. The order is not made because the parties accept the eldest child is now mature enough to make his own decisions. It is unlikely they could force him to attend upon a psychologist if he opposed it.
[96] Exhibit M2, Order 9
The mother proposed an injunction restraining the father from approaching near her residence.[97] The order is not made because the mother did not explain why it was needed, the father was not asked any questions about it, and it was not mentioned in final submissions. In fact, the proposed order was entirely ignored throughout the trial.
[97] Exhibit M2, Order 12
The orders oblige the parties to keep each other informed of their mobile telephone numbers and email addresses, so they may contact each other about the children in written form by text or email should the need arise.
The remaining orders are self-explanatory and could not be controversial.
The Independent Children’s Lawyer advocated for an order that the children have the orders and reasons explained to them by her and the Family Consultant. Neither party spoke against such an order, which is therefore made in those terms.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 29 November, 2017.
Associate:
Date: 29 November, 2017
Key Legal Topics
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Family Law
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Civil Procedure
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Procedural Fairness
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