Burton & Laurie
[2024] FedCFamC2F 630
•31 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Burton & Laurie [2024] FedCFamC2F 630
File number(s): CAC 391 of 2023 Judgment of: JUDGE MANSFIELD Date of judgment: 31 May 2024 Catchwords: FAMILY LAW – Child-related proceedings – Final orders – Two children with special needs – Parental responsibility in issue – Where each parent found to be genuine in their pursuit of what is in the best interests of the children but still at loggerheads - To shield the children from exposure to conflict, it is necessary for there to be an order for the mother to have sole parental responsibility – Time arrangements in issue – Where minimisation of changes is touchstone for orders progressing time with the father – Where certainty of orders is preferable over the likelihood of disagreement between the parents about readiness to progress Legislation: Family Law Act 1975 (Cth): ss 4(1), 60B, 60CA, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(i), 61B, 61C, 61D, 61DA, 65AA, 65D(1), 65DAC, 65DAE Cases cited: Tibb v Sheean (2018) 58 Fam LR 351 Division: Division 2 Family Law Number of paragraphs: 126 Date of last submission/s: 14 March 2024 Date of hearing: 12 – 14 March 2024 Place: Canberra Counsel for the Applicant: Mr Harper Solicitor for the Applicant: Dobinson Davey Clifford Simpson Counsel for the Respondent: Ms Dellidis SC Solicitor for the Respondent: Farrar Gesini Dunn Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
CAC 391 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BURTON
Applicant
AND: MS LAURIE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
31 MAY 2024
THE COURT ORDERS THAT:
Parental responsibility
1.The respondent mother have sole parental responsibility with respect to major long-term issues about the health and education for the children:
(a)X born in 2017 ("X"); and
(b)Y born in 2019 ("Y").
2.In the exercise of sole parental responsibility pursuant to the preceding Order:
(a)The mother shall keep the father informed as to any medical appointments scheduled for the children and invite him to those appointments AND IT IS NOTED THAT this Order does not create an obligation upon the mother to schedule appointments at times which are convenient to the father;
(b)The mother shall do all things necessary to inform the children's treating medical practitioners and allied health practitioners that the father is permitted to receive information and reports in relation to the children; and
(c)The mother is permitted to provide a copy of these Orders to the children's treating medical practitioners and allied health practitioners.
Living and Time Arrangements
3.The children are to live with the mother and are to spend time with the father as agreed between the parents. In the absence of agreement, the children are to spend time with the father in accordance with the balance of these orders.
4.From the date of these orders until the commencement of the 2024 end of year school holiday period, the children spend time with the father in the following fortnightly pattern:
(a)In Week 1:
(i)From the commencement of school on Wednesday (or 9.00am if a non-school day) until 5.30pm on Thursday; and
(ii)From the commencement of school on Friday (or 9.00am if a non-school day) until 5.00pm on Sunday.
(b)In Week 2:
(i)From the commencement of school on Wednesday (or 9.00am if a non-school day) until 5.30pm on Thursday.
5.From the commencement of the 2024 end of year school holiday period until the end of 2025 school Term 4, the children spend time with the father in the following fortnightly pattern:
(a)In Week 1:
(i)From the commencement of school (or 9.00am if a non-school day) on Wednesday until 5.00pm on Sunday.
(b)In Week 2:
(i)From the commencement of school (or 9.00am if a non-school day) on Wednesday until 5.30pm on Thursday.
6.From the commencement of the 2025 end of year school holiday period, and during all school holiday periods thereafter, the children spend time with the father:
(a)In the first week following the last day of school, and each alternate week thereafter, for six nights from 9.00am on Tuesday until 9.00am on Monday.
7.From the commencement of 2026 school Term 1, and during each school term thereafter, the children spend time with the father in the same fortnightly pattern as Order 5, being:
(a)In Week 1:
(i)From the commencement of school (or 9.00am if a non-school day) on Wednesday until 5.00pm on Sunday.
(b)In Week 2:
(i)From the commencement of school (or 9.00am if a non-school day) on Wednesday until 5.30pm on Thursday.
BY CONSENT, THE COURT FURTHER ORDERS THAT:
Christmas and Special Days
8.That notwithstanding any further Court ordered Final Orders, unless the children are already in the care of the relevant parent, and unless otherwise agreed between the parties in writing, the children shall spend time with each parent as follows:
(a)On Mother’s Day with the Mother from 9:00am to 5:30pm;
(b)On Father’s Day with the Father from 9:00am to 5:30pm;
(c)For Christmas:
(i)In 2024 and each alternate year thereafter:
A.With the Mother from 3:00pm 24 December until 3:00pm Christmas Day;
B.With the Father from 3:00pm Christmas Day until 3:00pm Boxing Day;
(ii)In 2025 and each alternate year thereafter:
A.With the Father from 3:00pm 24 December until 3:00pm Christmas Day;
B.With the Mother from 3:00pm Christmas Day until 3:00pm Boxing Day.
Handovers
9.That handovers pursuant to these and any further Court Ordered Final Orders, unless otherwise agreed between the parties in writing, shall occur as follows:
(a)On a pre-school / school day, at the children's pre-school or school; and
(b)On a non-school day, at B Shopping Centre (ACT).
Communications
10.That unless otherwise agreed between the parties in writing, each parent shall have FaceTime contact with the children each night they are not in their care at or around 7:30pm with such call to be facilitated by the parent who has the children in their care.
11.That for the purpose of communication pursuant to the preceding order:
(a)The parent with whom the children are spending time with is to initiate contact in the first instance; and
(b)The parent who is caring for the children shall provide the children with privacy so that the children can speak freely to the other parent.
12.That each parent shall keep the other informed by email communication in relation to their current contact details including: email address and mobile telephone number.
13.That each parent will be respectful in all email and telephone communication with the other party.
14.That in the event of an emergency involving the children, the parent who is caring for the children shall notify the other parent as soon as reasonably practicable, using the quickest form of communication, which may be by telephone or text message.
First Option to Care
15.In the event a parent is unable to provide care of the children overnight in accordance with these Orders:
(a)That parent shall advise the other parent of their inability to exercise care within 28 days' notice or such other period of time as is reasonably practicable prior to the care period; and
(b)That parent shall offer the other parent the first opportunity to provide such care.
Medical
16.That each of the parties shall:
(a)Notify the other of any medical emergency, serious illness or injury experienced by the children, requiring medical treatment or hospitalisation whilst they are in their care respectively as soon as practicable but within 3 hours;
(b)Forthwith notify the other of any medication prescribed for the children;
(c)Forthwith inform the other of any medical, dental or other health practitioner ("practitioner") with whom the children are scheduled to consult with or has consulted with, arrange for the other parent to take part in any consultations if they request to do so (in person if practicable and otherwise by phone) and authorise the practitioner to provide information in response to all reasonable enquiries of such practitioner in respect of matters considering the children's health;
(d)Forthwith provide the other with copies of any reports or records provided to them respectively by any medical, dental or other health professional attended by the children;
(e)Be and are hereby authorised to provide a copy of these Orders to any medical, dental or other health professional attended by the children; and
(f)Do all such acts and things and sign all such documents as may be required to record each of the parent's details as emergency contact persons for all practitioners.
17.Both parents will facilitate the children taking prescribed medications as recommended or directed from time to time by the child/ren's treating medical practitioners.
18.Both parents are at liberty to attend the children’s medical/dental/allied-health professionals appointments.
19.The parents keep each other informed as to any doctors visit or hospital admission of either child and shall inform the other parent of any appointments made for the children within a reasonable time period.
20.The parents keep each other informed as to the names and contact details of all current treating practitioners/allied health professionals, therapy assistants, support staff and educators for the children and shall provide them with a copy of these Orders and authorise them to communicate with each parent.
Information Sharing and Schooling
21.That both parents shall authorise by these Orders any school attended by either child, to provide to either parent, upon request, any reports, information or photos relating to either child, at the requesting parent’s cost (if any).
22.That both parents are at liberty to attend any school event relating to the children’s attendance at school, including parent teacher interviews, fetes, assemblies/award ceremonies, and concerts.
23.That both parents are at liberty to attend any extracurricular activities that the children are involved including but not limited to occasions relating to: education, religious education, sport, or schooling.
Restraints
24.That each parent be restrained by injunction from denigrating the other parent and/or their family members and friends to the children or in the presence of the children, and shall do all things reasonably necessary to remove the children from any environment in which the other parent and/or their family or friends are being denigrated in the presence of the children.
25.That each party be restrained by injunction from passing information or messages through the children to the other parent.
26.That each parent be restrained by injunction from discussing these proceedings and/or their family law dispute with the children.
Children's Passports
27.That each of the parties shall do all such acts and things as may be required to:
(a)On or before 1 June 2027 (unless otherwise agreed in writing between the parties) apply for an Australian passport for each child upon the request of the other, including to sign a completed application form within 14 days of being presented with that form by the other parent, with the parties to share the costs of same; and
(b)Thereafter, ensure that the children at all times have a valid Australian passport and to renew their passports at least 6 months prior to expiry.
28.Within 7 days of the passports being issued for the children the parent who receives or holds the children’s passport will deposit the children’s passport with the Registrar of the Federal Circuit and Family Court of Australia – via the Canberra Registry - who is hereby authorised to release the children’s passport to either parent upon receiving written consent from both parties to do so or an Order of the Court and neither parent shall unreasonably withhold their consent.
29.That within 7 days of returning from any overseas travel pursuant to these Orders, the travelling parent return the passports to the Canberra Registry where they shall be held pursuant to these Orders.
Overseas Travel
30.That from 1 June 2027 each of the parties be permitted to travel overseas with the children at times they are in their care respectively pursuant to these Orders, on the following conditions unless otherwise agreed in writing:
(a)Such travel will not be to a country that is not a signatory to the Hague Convention or if the country has a 'do not travel' advice on Smart Traveller; and
(b)The parent intending to travel with the children advise the parent, in general terms, of their intended travel plans as soon as practicable once those plans are known; and
(c)Not less than 60 days prior to travelling overseas with the children, the parent travelling with the children provide the other parent with details of their travel, including precise dates of travel and contact details for the duration of their overseas travel, along with a copy of return airline tickets and travel itinerary; and
(d)The children are to be accompanied on all international flights by one of the parties.
Parents' Psychologists
31.That the Mother continue to attend upon her psychologist, Ms D ("Ms D"), until such time as Ms D advises, in writing, that further sessions are no longer required.
32.That the Mother provide Ms D a copy of the Family Report of Dr C dated 25 October 2023 and any written reasons for judgment.
33.That the Father continue to attend upon his psychologist, Dr E ("Dr E"), until such time as Dr E advises, in writing, that further sessions are no longer required.
34.That the Father provide Dr E a copy of the Family Report of Dr C dated 25 October 2023 and any written reasons for judgment.
35.Both parties are permitted to provide copies of the Family Report of Dr C dated 25 October 2023, these Orders and the Reasons for Judgment dated 31 May 2024 to their respective treatment providers.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD:
The parents commenced a relationship in 2011 and cohabitation in 2014. X was born in 2017 and Y was born in 2019. In 2020 Y was diagnosed with a medical condition. In August 2022 the parties separated after an 11 year relationship, at which time X was 5 and Y was 3 years old.
The expert reported:
9. The two children of this union, [X] and [Y], both have special developmental and intellectual needs. [X] is diagnosed with Autism Spectrum Disorder (ASD) and is currently in year one at [F School]; she presents as a high functioning child. [Y] is in day care and is diagnosed with [a medical condition]. [This condition] is a rare, neurogenetic disorder, […], gastrointestinal issues, sometimes seizures, and little to no speech. Individuals with [this medical condition] often present with an apparent happy demeanour that includes frequent laughing, smiling and excitability.[1]
[1] Exhibit C1.
X is 7 years old. She continues to attend F School and is now in grade two.
Y is 4 years old and commenced pre-school this year. She attends intermittently to the extent that she can cope.
The mother reported to the family report writer that during the relationship ‘it was like two people going in the same direction, but with a wall up the middle. He won’t talk about anything, and anytime I want to, he just shuts it down, and tells me I can go and talk to other people.’[2]
[2] Ibid, at [68].
The father agreed with the family report writer that during the relationship he was avoidant stating ‘Obviously she had issues and maybe I was oblivious to it. Maybe I’m just stupid like that. I would go to work, earn the money, pay the bills, obviously she needed more than that.’[3]
[3] Ibid, at [34].
Post-separation, the children’s time with the father was a source of anxiety for the mother and frustration for the father. The father acknowledged that he was emotionally reactive sending unhelpful text messages to the mother which he was remorseful about. Overnights did not occur until November 2022. Arrangements were sporadic, co-parenting communication was poor and levels of distrust were high. In March 2023 the father resolved that it was necessary to commence proceedings.
Interim orders were made on 15 June 2023 providing for the children to spend time with the father for one day and two nights in week one, and one night in week two, being three nights per fortnight.
My impression is that things bottomed out during the period between separation and the interim orders. Due to their commitment to their girls and a genuine desire for improvement, over the course of late last year and up until final hearing my impression is that the situation as between the parents is already on the improve albeit with some way to go.
The parents cannot agree on how major long-term decisions are to be made nor as to what the children’s time arrangements with the father should be. The father sought equal shared parental responsibility and more time with the children increasing to almost shared care. The mother sought that she have sole parental responsibility and the children’s time with the father be increased at her discretion based on how the children are coping.
THE FATHER’S CASE
By his Amended Initiating Application filed 20 February 2024, the father sought final orders including that:
(a)The parents have equal shared parental responsibility;
(b)The children live with the mother and spend time with the father in fortnightly cycles:
(i)Immediately increasing from three to five nights per fortnight and two years later to six nights during school terms; and
(ii)Building over approximately two years from six to eight nights per fortnight during school holidays.
On the father’s case, the benefit to the children of the father being actively engaged in all aspects of the children’s lives and for them to have significant time with him outweighs the risk of harm to the children of their exposure to any ongoing parental conflict.
THE MOTHER’S CASE & THE ICL’S CASE
The final version of the orders sought by the mother were adduced after the evidence and prior to closing submissions. By her Minute of Final Orders Sought (Exhibit R5), the mother sought final orders including that:
(a)She have sole parental responsibility but is obliged to notify the father and he be permitted to attend medical appointments and receive all medical information commensurate with equal shared parental responsibility; and
(b)The children live with the mother and spend time with the father in fortnightly cycles:
(i)Building over the balance of this year from three to four nights; and
(ii)From next year, for blocks of four consecutive nights per fortnight during school holidays.
On the mother’s case, having to make joint decisions and the level of co-operation between the parents that would be required for close to shared care, increases the potential for conflict between the parents and the children’s exposure to it such that it outweighs the benefit the children might otherwise derive from their relationship with the father.
By her closing submissions, the ICL supported the mother’s position that:
(a)The mother have sole parental responsibility; and
(b)The children live with the mother and spend time with the father in fortnightly cycles:
(i)But increasing immediately from three to four nights per fortnight and then to five nights in about one year; and
(ii)She supports the mother’s orders during school holidays which provide for blocks of four consecutive nights.
THE HEARING
The matter was heard over three days. The parents were each represented by counsel. The father relied on his trial affidavit (Exhibit A1) and an additional affidavit in reply (Exhibit A2). There was another affidavit in his case from a friend of his Mr H (Exhibit A3). The mother relied on her trial affidavit (Exhibit R1) and some additional material (Exhibits R2-R4). Both parents were cross-examined.
A single expert witness prepared a report (Exhibit C1) and was cross-examined.
Foreshadowed at the commencement of the hearing was that the parties were confident in being able to produce a minute of orders sought by consent to encompass all of the peripheral matters. Jointly submitted at closing submissions was the said minute (Exhibit C2).
Credit is not an issue in this case. I have found both parents to be truthful, careful and reliable witnesses who have earnestly engaged in the proceedings and the hearing.
Without doubt, they both deeply care for and pursue what they believe is in the best interests of X and Y. Unfortunately, it has meant that their differing approaches and views have put them at loggerheads.
As will become clearer in these reasons, this is not a case of preferring one party’s evidence over the other, or having to make findings as to mutually exclusive matters. It is largely a case where the evidence of both parties and their respective contentions are acceptable. The conundrum is that the parties are unable to agree and thus are in need of the Court’s determination as to which of their competing positions is deemed to be in the best interests of the children.
It is also noteworthy that throughout all of the hearing, one or the other of the parents sat with Y in a different room connected by video-link because Y does not cope well without one or the other of them. The parents exhibited a high degree of cooperation and managed the situation seamlessly.
THE ISSUES
It is worthwhile to commence with recognition of the significant amount that is agreed in the proposed orders by consent (Exhibit C2) which includes:
(a)There be medical, schooling and extra-curricular attendances and information sharing commensurate with parents who have equal shared parental responsibility. In practical terms, the mother’s pursuit of sole parental responsibility does not seek to limit the father’s access to information or attendances.
(b)Time at Christmas and on special days;
(c)Handovers;
(d)There be electronic communication at 7:30pm each night;
(e)Each parent has the first option to care wherever a parent is unable to care for the children;
(f)Both parents facilitate taking of medications as prescribed;
(g)Mutual restraints to protect the children’s exposure to harm;
(h)Obtaining of passports and permitting international travel from June 2027; and
(i)That they each will continue to attend upon their respective psychologists until advised they are no longer required.
It is convenient to deal here with the affidavit of the father’s friend Mr H. Mr H was not cross-examined. I accept his opinion evidence that the father is of good character, a loving and dedicated father and able to provide for the needs of the children. That evidence is unsurprising and is not in issue. It does not of course harm the father’s case in any way but Mr H’s evidence does not greatly assist me in determining what is in issue.
What is not agreed and therefore is in issue is:
(a)Whether the parents are to have equal shared parental responsibility or the mother is to have sole parental responsibility;
(b)If the mother is to have sole parental responsibility:
(i)Should it be with respect to education and health issues only?
(ii)Should there be a specified regime for obtaining the father’s views prior to making relevant decisions?
(c)What is the quantum and pattern of time that the children should spend with the father including:
(i)When should there be an increase to four nights? Now (father and ICL) or January 2025 (mother)?
(ii)What day should the additional night be? Tuesday (mother) or Wednesday (father)?)
(iii)Should there be another increase to five nights (father and ICL) or should any further increases be left to the mother’s discretion (mother)?
(iv)Should there be any further increases in time with the father (father), or should any further increases be left to the mother’s discretion (mother and ICL)?
(d)Should there be a mechanism for review of the time arrangements?
THE EXPERT EVIDENCE
A single expert witness prepared a ‘Clinical Report (Family Evaluation) dated 25 October 2023’. Interviews and assessments were conducted on 15 September 2023. The expert noted the interim orders of June 2023 governed the arrangements at that time and “there is little meaningful communication between the parties at this time and any matters of significance are conveyed between the parties’ solicitors.”[4]
[4] Exhibit C1, at [8].
The expert reported that the father presented as very distressed and noted her concern that the father may have been minimising suicidal ideation at the time of the interview. The father reported that he had never been formally diagnosed with mental illness, until the mother took the children and he was subsequently diagnosed with depression. Psychometric testing of the father was attempted but the results were considered invalid and test interpretation was terminated. The expert reported this may be because he did not wish to reveal himself throughout this process, or because he was simply unable to introspect sufficiently. Further:
With regards to [Mr Burton]’s ability to acknowledge problems and engage with support services, I would suggest that while he may be cognisant of his mental health vulnerabilities, his overall insight remains limited and he requires further psychological intervention. His motivation for treatment is low; he has been somewhat resistant to therapy thus far (notwithstanding his brief engagement with EAP) which will require improvement.[5]
[5] Ibid, at [154].
The expert did not assess the father as “being particularly callous or predatory in nature towards the mother, although the mother may well have seen him through this lens after repeated attempts to emotionally connect with him failed.”[6]
[6] Ibid, at [152].
Of the mother’s psychometric testing, the expert reported it …. “largely comports with my own clinical observations of her at the time of interview, and with the court filed material provided to me. She presented with significant anxiety, as well as overly rigid and controlling in her views. There was also a layer of profound sadness that appeared to be triggered through scripts of rejection and abandonment by Mr Burton in the course of their relationship, which has undoubtedly left Ms Laurie feeling quite embittered towards him.”[7]
[7] Ibid, at [122].
The expert reported as follows:
134. [Mr Burton] presented as aggrieved that [Ms Laurie] suddenly ended the relationship, resulting in a significant loss of time between himself and the children, while [Ms Laurie] presented as exceptionally distressed by [Mr Burton]’s alleged neglect and emotional absence towards her during the relationship. She experienced his behaviours as emotionally and psychologically abusive and felt that instead of approaching her distress with care and curiosity, he often deferred to gaslighting her and telling her that she had ‘mental issues’. She also spoke of her fears that he is not a competent father, particularly given the complexities of the girls’ special needs and his challenges around engaging with emotional needs of himself and others.
135. … there is effectively a complete absence of any co-parenting relationship between the parties at this time. There is no joint decision-making, nor planning, nor meaningful discussion in relation to [X] and [Y]. All communication is conveyed either by text message between the parties, or via solicitors, and I would opine that contact has been strained for some time now, well and truly prior to their formal separation. Indeed [Ms Laurie] was adamant that [Mr Burton] refuses to answer her phone calls and will not agree to using a parenting application due to security concerns. In my opinion, this dynamic is unlikely to change anytime in the near future.
136. It is clear that the alleged problematic behaviours of each respective party towards the other, throughout their relationship and into the post separation period, have resulted in a highly negative interpersonal dynamic between them, and that these experiences appear to have inevitably diminished any trust or goodwill that may have otherwise existed between them. Given that the parties have been separated for just over 12 months now, it is evident that any longer-term co-parenting is likely to be difficult between them. [Ms Laurie] in particular presents as embittered and resentful towards [Mr Burton], and this was evident on the day of their assessment. She presents as particularly rigid in her views. While I have not formed the opinion either party is deliberately curtailing the other party’s time with the children, it is clear that [Ms Laurie]’s profound anxiety around managing the children’s current and future planning and medical needs, as well as her resentment towards [Mr Burton], are acting as a barrier to more effective co-parenting which in effect is impacting [Mr Burton]’s relationship with the children. Similarly, if [Ms Laurie]’s narrative is to be believed, [Mr Burton] presents as distrusting of her judgement, rigid and combative, resulting in delays concerning important decisions which are affecting the needs of the children.
[…]
141. … there was compelling evidence that both children evidenced delight with both parents. [Y] found it equally difficult to separate from both parents, and was distressed when the other parent initially left the room, before being soothed by the redirection of the remaining parent, …
As at the report of October 2023, the expert recommended that the interim arrangements of three nights per fortnight move to four nights per fortnight but no further. The expert added:
160. It is important to note that this was a difficult decision to reach, and in no way suggests that I currently view [Mr Burton] as being entirely, or even predominantly, responsible for the conflict between this couple. Indeed, there is compelling evidence that [Ms Laurie] presents as exceedingly rigid and sensitive to [Mr Burton]’s predispositions, and I am concerned about her anxiety and a potentially negative narrative about [Mr Burton] influencing the children, and at worst, estranging them from him in the years ahead.
161. Moving forward, the division of time may be reviewed eventually (not sooner than 12 months) with the view to increase [Mr Burton]’s time with the children; this will be entirely contingent upon the girls’ functioning, although with [Y] transitioning to pre-school next year I would suggest that any reviews should not fall within term one of her commencing a new routine. It will be particularly critical to graduate any changes for these children and ensure they do not coincide with other changes (i.e., changes to a new school should not coincide with custody changes).
(Emphasis added in bold)
THE LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Court may make such parenting orders as it thinks proper (s 65D(1)), 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 children’s best interests as the paramount consideration (s 60CA and s 65AA).
Parental responsibility
Division 2 of Part VII of the Act is titled ‘Parental responsibility’ and deals with the concept of parental responsibility including (a) what parental responsibility is; and (b) who has parental responsibility.
Section 61B provides that parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Section 61C provides that each of the parents of a child who is not 18 has parental responsibility for the child, despite any changes in the nature of the relationships of the child’s parents, but is subject to any order of a court for the time being in force.
Section 61D provides that a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any): (a) expressly provided for in the order; or (b) necessary to give effect to the order.
Further, the effect of a parenting order that provides for shared parental responsibility is set out at section 65DAC where the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child. The order is taken to require the decision to be made jointly by those persons which requires each of those persons: (a) to consult the other person in relation to the decision to be made about that issue; and (b) to make a genuine effort to come to a joint decision about that issue.
Pursuant to sub-section 4(1) of the Act, “major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The best interests of the children
Section 60CC of the Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the children’s best interests. In Tibb v Sheean (2018) 58 Fam LR 351 at [68]–[69], the Full Court made clear that while the Court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary. I have given careful consideration to each of the primary and additional considerations as they relate to the issues and circumstances of this case. I will discuss the considerations only to the extent necessary.
FACTUAL FINDINGS
It is not in issue, or is agreed or is otherwise obvious on the evidence that:
(a)During the relationship, the mother was the primary carer for both children which has continued post-separation.
(b)Both children have and benefit from a meaningful relationship with both of their parents (s 60CC(2)(a)).
(c)The parents’ personality traits create for a problematic interpersonal dynamic between them.
(d)Both children are vulnerable and have disabilities and special needs. They cannot articulate their wants and needs for the future, and the degree of appreciation by each child of the factors involved before the Court and their longer-term implications, are extremely limited.[8] (s 60CC(3)(a)).
(e)Both children are securely attached to each parent. The children have difficulties separating from both parents, not just the mother (s 60CC(3)(b)).
(f)The extent to which each of the child's parents has taken the opportunity to participate in making decisions about major long-term issues in relation to the children, and to spend time with the children, and to communicate with the children is high (s 60CC(3)(c)).
(g)The father is assessed for and pays child support (s 60CC(3)(ca)).
(h)Both parents have demonstrated their commitment to the responsibilities of parenthood. (s 60CC(3)(i)).
[8] See Exhibit C1, paragraph 148.
There was some evidence and cross-examination about the father’s hours of work preventing him from caring for the children.
It was put to the father by counsel for the mother that he had not taken time off work in emergency situations as the wife had. The father gave evidence that he had “taken leave for certain circumstances” but that he wasn’t sure when or how often.[9]
[9] Transcript 12 March 2024, 71.
The father by his trial affidavit deposed he would "seek more flexible employment, with core hours of Monday to Friday, 9am to 5pm, in order to better accommodate the children’s needs in the future.”[10] The father gave evidence that he had changed his role to be on a fixed roster within standard hours.
[10] Exhibit A1, at [201].
I am satisfied that the father has demonstrated his willingness and ability to sufficiently alter or restructure his working hours to accommodate the kinds of time arrangements contemplated as final orders.
I am also satisfied that there is an absence in both parent’s cases of any alternative agendas or underlying factors that are not child-focussed.
Other facts, matters or circumstances on which there was some dispute or that feed into the determination of final orders are as follows.
Family violence and risk
No issues of risk or family violence or harm are raised by the father directly however it is his case that the actions of the mother are emotionally damaging to him. The mother alleges emotional and psychological abuse perpetrated by the father towards her during the relationship and post-separation.
As between the parents, I am satisfied that the mother’s psychological profile and the father’s tendencies are so incompatible as to sufficiently explain the feelings that they are each being coerced or controlled by the other, as opposed to threatening or other behaviour that is meant to actually coerce or control the other.
The parties’ dispositions are recognised by the expert as combining to “increase the risk of harm to the children, by way of exposure to ongoing conflict and discord, and are attributed to both parents.”[11] (Underline emphasis in the original).
[11] Exhibit C1, at [151].
Accordingly, I am satisfied that pursuant to s 60CC(2)(b), there is a need to protect the children from psychological harm by being exposed to conflict between their parents. Any other forms of family violence do not otherwise feature in the circumstances of this family.
The mother in her evidence makes some allegations as to the father’s incapacity to provide for all of the needs of the children and suggests there is a risk of harm to the children by way of neglect or obstinance. The expert nor the ICL support this view. I too am not satisfied that the evidence supports the mother’s position on that point.
The expert reported, and to which I concur:
156. … I reiterate that I did not find evidence that the children would be unsafe in the care of either parent. It is my view that both are equally capable of, and committed to, meeting the children’s special developmental and intellectual needs and that the main issue this family is facing in the future, is how to resolve or manage the ongoing tension and hostility between the parents.
Over-medicalising of the children
The father deposed:
… [Ms Laurie] appears to prefer a more robust approach to medication and in my view, may tend to give more medicine than may be necessary. I tend to a more conservative approach and give medication as prescribed or as recommended on the product (for over the counter products). I worry that [Ms Laurie] may not be frank with me about the extent to which she is medicating the children, as is set out below.[12]
[12] Exhibit A1, [at 111].
The father gave an example of the mother providing him syringes preloaded with the maximum dosage of risperidone to administer to X, being double that of the dosage she was prescribed. The mother conceded that was unnecessary and wouldn’t have assisted with the trust issues but that she did this at a time when the communications between the parties were poor.
In cross-examination, the father confirmed his ongoing concerns about the mother exaggerating or manufacturing circumstances to doctors in order to obtain medications ‘just in case’ along with his concerns about overdosing.
I do not share the father’s concerns that the mother would compromise the children’s health by overdosing or over medicalising their circumstances. I see the father’s concerns around this issue as not baseless, but arising out of the time when there was a severe lack of trust between the parents. I do not accept the father’s contention that it is a factor that supports an order for equal shared parental responsibility as a way to mitigate or manage this issue.
The parties seek by consent an order that both parents facilitate taking of medications as prescribed.
Attempted enrolment of Y into G Centre
G Centre is a service that gives effect to a publicly funded initiative for three year olds to spend two days in a service like G Centre to learn some independence and to support them into preschool. The program was recommended to the mother and from March 2023 the mother sought to engage with the father and enrol Y. The father did not agree Y was ready. Orders were made in June 2023 on the basis that a parent be in attendance on Y’s days at G Centre. The father stalled citing his unanswered enquiries of the centre. He then consented. The recommended two consecutive days did not fit within Y’s time with the father. G Centre accommodated with split days but that still didn’t amount to the father’s non-negotiable position of equal time as between the parents attending with Y. There was extensive correspondence over seven months. By October 2023, time had run out and ultimately the father withdrew his consent and Y was unable to attend.
This is a short summary of the vast amount of evidence that was led on this issue. The entire incident was clearly exhausting for both parties. It is, however, a prime example of where Y has clearly been deprived of something that would highly likely have been of benefit to her, deprivation of which was due solely to the inability of the parents to make a joint decision.
Management of the NDIS Packages
The mother commenced engagement with the NDIS for Y in 2020. She manages both Y’s and X’s plans. She deposes to engaging with the NDIS portal on a weekly basis to manage their accounts and that the annual report process is especially intensive which takes weeks and a lot of preparation. The father does not have access and has to rely on information provided by the mother. The father concedes the mother has done a great job at securing and managing the funding.
Nevertheless, the father contends that the plans should now be switched to being ‘Plan Managed’ which essentially takes the management out of the hands of the mother and puts it into the hands of a manager so he could feel like he would be better informed and so he could be involved in the decision-making process.
Access to services and supports under the NDIS scheme is obviously very important. It is a subset of the decisions to be made about the health of the children. It is an example of where the combination of the father’s pursuit of equality and the parents’ poor communication has the potential to jeopardise the maximum benefit the children are otherwise and already receiving under the scheme.
Interpretation of the June 2023 Orders
The June 2023 orders provided for a progression of time with the father after three months which by coincidence was the day of the family report interviews in September 2023. The father interpreted those orders as the children spending time with him for three nights in the space of five days. The mother interpreted those orders as two nights in one week and one night in the other week. There followed voluminous correspondence between the parents and then their solicitors, with the mother obtaining a copy of the interim hearing transcript and reverting to the ICL.
I understand that both parties were seeking the interpretation that better aligned with what they sought long-term, such that their unwillingness to yield on this issue was heightened. There were about 60 pages of correspondence over a month. It was an expensive and exhausting process that impacted negatively on the children by exposing them indirectly to the conflict and directly to the stress of each parent.
The January 2024 communications
In January 2024, the mother sent an email to the father which is, effectively, an innocuous exchange of information at changeover. That was something that the parties had been working on in their family therapy. That escalated into 16 emails over nine days. The father was hostile and critical in his response about the lack of detail from the mother. Under cross-examination from the ICL, the father conceded that he still believed that he was being kept in the dark and that he was entitled to more information than what he was getting from the mother but both he and the mother had improved their perspectives and communications since then. He referred to this as a hiccup and not representative of the majority of the time. Noting the hearing was in March and this communication occurred in January 2024, the line of communication went on to include, in a back-handed way, the father airing his suspicion that the mother was romantically involved with one of the children’s therapists. That was not and is not the case.
The January 2024 communications carry weight as they are recent. It is after the time in which the father says he has obtained insight and strategies from his therapy sessions. While both parties depose to improvement in their communications and perspectives, there remains the real potential for backsliding.
Y’s introduction to preschool
Y’s introduction to pre-school this year has not gone well. She has not been able to be left unaccompanied by either the mother or the father. Her behavioural therapist and her paediatrician have been involved in the pre-school plan. On 12 February 2024, the paediatrician wrote:
[Y] is experiencing significant separation anxiety especially on drop off at preschool at present however it is only the third week of school. I discussed the possibility of medication to assist with the separation anxiety today. Her parents differed in their opinion regarding use of medication with her mother preferring to trial medication sooner and her father preferring to delay a medication trial. As she has only been at preschool for a very short period of time I have recommended waiting until half way through Term 1 before trialling the medication which would be low dose risperidone on school days. I have not given a script today but I have requested that her parents contact me in a few weeks, should she be still having the significant difficulties separating. Otherwise, I will [sic] her again in three months' time.[13]
(Error in original)
[13] Exhibit R1, annexure MSL-20.
By halfway through Term 1 the situation had not improved and the mother reached out to the paediatrician but the father did not agree. At the time of the hearing, there was two weeks to go in Term 1. The father had not and would not agree to the paediatrician’s proposed trial of medication on the basis that he held his own concerns about the veracity of the medication in Australia compared to the USA, that there were changes to the behavioural therapist’s plan and that parents had since agreed not to try separation until Term 2.
Y’s transition to pre-school is a clear and recent example of, despite the parents having an agreed goal, their inability to manage their disagreement on how to achieve the goal at a detriment to the children.
The Mr J notes
In answer to a subpoena, the therapist upon whom the father attended through his Employee Assistance Program produced his file with respect to the father. The majority of it was handwritten notes taken by him in session with the father. Much use was made of this material in cross-examination by counsel for the mother in order to mount arguments and make submissions that: the father’s motivations and intentions as presented in his evidence may not be genuine; that his attentions are not as child-focussed as he says, that he is more focussed on the mother than he says; and, he is not as reflective as he says. I do not accept those submissions for the following reasons.
(a)The notes were handwritten and the author of them was not on affidavit or called for cross-examination. They could not be verified as to accuracy or completeness or context through the author of them.
(b)The parts most favourable to the mother’s case were properly put to the father and he was asked about their accuracy. At times, he made concessions against his interests. At other times, he rejected the truthfulness of the representations or sought to explain that they did not convey the full picture. At other times, he simply could not recall. All of those responses are understandable.
(c)The representations made by the father (as noted by the therapist) were in private session with clearly no anticipation of them being used in proceedings. On the one hand, I accept it is open to submit that the probative value of those representations is therefore high. However, in the circumstances where the whole of the context of those representations are not in evidence, they are inherently unreliable and therefore prejudicial.
Each parent’s mental health
The mother’s case included allegations that the father had been hostile, abusive and manipulative in her dealings with her. Under cross-examination she maintained those allegations, but conceded that was not occurring now. She maintains that the father can still be combative and lacks insight into his own behaviours and his effect on her and her ability to make and implement decisions. She worries about these same behaviours in due course projecting onto the children.
The father attended upon a psychologist through his Employee Assistance Program (“EAP”) between December 2022 and March 2023. He attended upon a private psychologist twice in April and May 2023 who provisionally diagnosed him with Major Depressive Disorder (MDD).[14] He had one session with a new psychologist in late February and intends to continue to see him.[15]
[14] Exhibit A1, annexure MRB-29.
[15] Ibid, at [158].
I am satisfied that the father had certainly shifted his position since the family report as to the need for and benefit to therapy and that he had taken and continues to take steps forward. I formed the view however that there is a significant way to go. The evidence does not support the father’s contention that the parents’ communication problems are more of a historical matter which, now that it has been identified was being fixed, nor that there are sufficient grounds to be satisfied that it will dissipate in due course.
The father raises as an issue the mother’s capacity to cope. The mother has been regularly attending sessions with a psychologist since September 2022. The mother was able to give some examples of how, in her therapy, she was addressing some of the issues that were identified by the expert in her report. For example, not reacting emotionally to the father’s correspondence and with a greater understanding of his intentions. Whilst there have still been problematic communications and disagreement as found above, I formed the view that the mother had genuinely progressed with the help of her therapy between the time of the report and the final hearing.
The mother deposed that:
225. I had my initial appointment with [Ms D] in around September 2022. I have seen [Ms D] on roughly a fortnightly basis ever since. My GP has recommended I continue seeing [Ms D] as part of my mental health particularly noting the court proceedings that I am in the middle of.
226. During my appointments with [Ms D], we focus on counselling and therapy work. [Ms D] has not diagnosed me with any conditions nor prescribed any medication.
227. I find these sessions useful in processing my emotions around separation and caring for the girls. It also helps me navigate any issues I may be having with [Mr Burton]. For example, [Mr Burton] has repeatedly accused me of having mental health issues, and I have found it reassuring working with [Ms D] to dispel [Mr Burton]’s assertions about my mental health.[16]
[16] Exhibit R1.
The expert reported:
As the children’s current principal care figure, any further trauma or mental anguish for [Ms Laurie] would have direct implications for [X] and [Y], and should be considered germane as the Court addresses the practicalities associated with joint parental responsibility. While it is positive that both parents reported at the time of interviews that they hoped to cultivate an amiable relationship in the years ahead, their long standing history which is characterised by an absence of meaningful communication and joint decision making, would suggest any success in this goal will require significant professional intervention for them.[17]
[17] Exhibit C1, at [139].
Under cross-examination, the expert was pleased to hear of both parties’ progress, but it did not change her views as expressed in the report.
Irrespective of the outcome with respect to parental responsibility and time arrangements, the parties seek orders by consent that they both continue to attend upon their psychologists “until such time as [their psychologist] advises, in writing, that further sessions are not required.”[18]
[18] Exhibit C2.
I am satisfied that each party has certain vulnerabilities with respect to their own mental health. I am also satisfied that each party is now cognisant of these vulnerabilities and has taken steps and are taking steps to address them both in themselves and how to take into account the others. Most importantly, I am satisfied that neither parent’s vulnerability impacts upon their capacity to provide for all of the needs of the children in their short term or long-term care.
DETERMINATION OF PARENTAL RESPONSIBILITY
The expert reported:
Regarding the issue of parental responsibility, it is well established that in most instances, children benefit enormously from the considered input of both their parents in relation to important decisions affecting their care and upbringing. For children with neurodivergence or other complex disabilities, research has shown that they do not cope well with inconsistencies in their schedules, as well as different parental approaches of overseeing their development. Parents must find a way through separation to become aligned and synchronise their approach to parenting, and this includes a cohesive and timely approach to decision making. Unfortunately, this does not seem to be the case for this family to date. That is, these parents have not yet demonstrated the ability to communicate with clarity or effectively coparent the children. They are engrossed in their own approaches and beliefs about what is best for these children, and their respective views do not align, causing deeper fractures and delays which impact [X] and [Y]. The reality is that should the court be satisfied that [Mr Burton] and [Ms Laurie] are simply unable to work together on decisions as they relate to the children – and it is my view that they are unable to - that it would ultimately be in the children’s best interests for one parent to assume this responsibility, in particular to ensure any medical and allied health decisions are not delayed. Alternatively, the Court could consider that one parent is provided with sole responsibility for medical decisions (including NDIS related), while the remainder of decisions which are not as timely remain joint.[19]
[19] Exhibit C1, at [138].
The expert’s view was not moved under cross-examination:
… there’s just this ongoing relationship that’s characterised by disagreement, tension, a sense of combativeness. Irrespective of which parent it comes from, the fact that it’s just there continues this – you know, perpetuates the negative environment of the children. If the parents are not in agreement and they’re in conflict, then it concerns me how that’s being transferred around them, whether that’s verbally or non-verbally. I think children are incredibly sensitive and astute and can pick up on these dynamics.[20]
[20] Transcript 14 March 2024, 19.
It is clear that the touchstone to whatever orders are to be made with respect to parental responsibility is shielding the children from exposure to conflict.
The father says that the communication difficulties that they have experienced in the past and that have been so clearly identified by the expert in her report have improved such that joint decision making is feasible. He points to recent examples of the agreements about X’s occupational therapy and her attending sports activities. It is also clear that the parents manage changeovers and logistics quite well, each of them sitting with Y during the hearing being an example of this.
However, the circumstances and findings with respect to the attempted enrolment of Y in G Centre, the interpretation of the June 2023 Orders, the January 2024 communications, Y’s entry to pre-school and her medication are cogent evidence that the improvement is not sufficient to meet the mandatory obligations at s 65DAC to come to joint decisions. The expert was also adamant.
To shield the children from exposure to conflict, it is necessary for there to be an order for the mother to have sole parental responsibility.
To what extent should the conferral of sole parental responsibility apply?
Of the ‘major long-term issues’ included in (but not limited to) section 4(1) of the Act, only (a) the children's education (both current and future) and (c) the children's health have featured in this case. The conferral of sole parental responsibility on the mother ought not extend any further than what is necessary to shield the children from conflict. I am satisfied that the children are likely to benefit from the input of the father and the mother with respect to other major long-term decisions that may arise in the future which do not carry the same level of acuteness or time pressures that the health and education decisions are likely to.
The conferral of sole parental responsibility on the mother should apply only to the children’s education (both current and future) and the children’s health.
This means that each parent continues to have all the duties, powers, responsibilities and authority which, by law, parents have in relation to the children, and the order does not take away or diminish any aspect of the parental responsibility, except, for major long-term decisions with respect to the children’s education (both current and future) and the children’s health.
Should the mother be obliged to notify and consult with the father before making a major long-term decision.
There are two circumstances to first recognise before answering this question.
Firstly, s 65DAE of the Act provides that if a child is spending time with either parent, that parent is not required to consult the other parent about decisions that are not major-long term issues. The notation to that section provides “This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.”
Secondly, irrespective of conferral of parental responsibility, the parties seek orders by consent that there be medical, schooling and extra-curricular attendances and information sharing commensurate with parents who have equal shared parental responsibility. I do not consider that either parent has tried or is intending to control information vis-a-vis the other.
Arising from the father’s evidence is a consistent theme that he feels and believes that he is being deprived of information. The mother recognises that and proposes further orders to deal with it by obliging her to notify and invite the father to medical appointments. The expert endorsed the proposal that the father have the ability to be present in appointments and ask whatever questions he likes as a way of being inclusive for both parents without preventing an ultimate decision being able to be made.
An order that frequently accompanies an order for sole parental responsibility is an order requiring the parent with decision making responsibility, prior to exercising that responsibility, to notify the other parent, consider any views they have and notify them of the decision once made. In closing submissions, the mother did not oppose the making of such an order. I am not certain however that the issue was fully recognised at that time.
The following exchange occurred in cross-examination of the expert by the ICL which is germane to this issue:
Q: … one of the issues that has arisen – and again this is my impression – the father wants a level of detail that the mother either cannot, will not or should not provide. So what those orders, the proposed orders, don’t deal with is how the children have slept, what their toileting has been like, what they’ve eaten, their moods, whether they’ve had any breakdowns, and so on. There’s a disconnect between what the father wants in terms of detail and what the mother, as I said, is able, effectively, to provide. Can you give his Honour any guidance about orders that could or should be made, or is that a matter for the parties at family therapy to deal with?
A. ---Look, I think that – of course a balance needs to be found between these parents, you know, depending on the, I guess, magnitude of the questions the father is asking, but the examples you gave me there I don’t view as necessarily being entirely unreasonable given the additional needs of these children. We are trying to cultivate two home environments, two separate homes, that mirror each other as much as possible, and the only way to really achieve that is for both parents to be well informed of the children’s different habits, behaviours, sleeping patterns, etcetera. Now, I don’t know if that is aligned with the father’s intention of wanting that information but, assuming that’s the purpose of it, I don’t think that’s unreasonable. And of course, you know, I emphasise within reason, so not to drive the mother mad with, you know, 101 questions every day, but if there was to be some agreement between the parties in – you know, in the scope of family therapy as to what is reasonable and informative to create that congruency between two homes, then I think that’s a reasonable way forward.[21]
[21] Transcript 14 March 2024, 10.
In the circumstances of this family, the demarcation between major long-term decisions and day to day decisions is not as clear or obvious as it may be in other cases. Also, there is likely to be differences in opinion between the parents as to what constitutes a major long-term decision versus a day-to-day decision. The disputes around the use of medications is a good example.
The mother has not been found to be wanting or to have poor judgement in the exercise of parental responsibility to date. In circumstances where this is not about unsafe or inappropriate decisions, just different opinions, an order requiring the mother to notify the father about what may or may not be major long-term decisions or day-to-day decisions is in my view likely to do more harm than good. That sort of communication is the very thing that these parties have demonstrated great difficulty in dealing with in the past.
Further, the reality is that the father is going to need to become comfortable with having less information than he would otherwise like and to trust the mother. He will also have unfettered access to information and attendances.
Therefore, there should not be an order compelling the mother to notify and consult with the father before making a major long-term decision.
DETERMINATION OF TIME ARRANGEMENTS
The expert identified the following considerations with respect to living and time arrangements [at 157]:
•It will be critical to minimise changes to the children’s schools and therapies in the years ahead as well as their social opportunities as much as possible.
•The parents trying to establish regular and extended visitation periods to maintain consistency for the children.
•Providing [Y] and [X] with a highly structured setting fostered by predictability and order across both homes to help them to stay regulated.
On the issue of shared parenting, the expert reported:
Last, it is well documented that equal time with each parent is unlikely to be in the children’s best interests given their neurodivergent needs, particularly in the early post separation phase. Further, it is understood that neurodiverse children struggle with the transition from one activity to another, especially if it involves reorientation (such as a different house) and a new set of behavioural expectations, which relies on cognitive flexibility. Typical transitions, such as leaving the house for school can trigger behavioural issues. The idea of constantly transitioning between houses may be particularly difficult on [X] and [Y]. Co-parenting agreements must factor in the enormous impact living arrangements will have on these two children. If, as demonstrated to date, these co-parents do not have the capacity to communicate well and work closely together to ensure continuity of routine and structure for [Y] and [X], then shared parenting is not in my view in their best interests.[22]
[22] Exhibit C1, at [158].
The expert evidence, which has not been displaced, establishes that the starting point and the touchstone to final orders concerning living arrangements and time is the minimisation of changes for the children.
When should there be an increase to four nights – now (father and ICL) or January 2025 (mother)?
In October 2023, the expert recommended that one of the days with the father progress to an overnight such that there be four overnights per fortnight. In cross-examination the mother was asked why she did not agree to implement that clear recommendation and she deposed “Because we were waiting for negotiations and proceedings to be finalised” and “From the date of the family report, we had only just implemented the current arrangements, so from the – from the previous ones, and I really wanted to give the current arrangements a go and implement those before making any further changes.”
The mother conceded that it wasn’t a case of the children being at risk if they spent four nights with the father instead of three, or that the father couldn’t care for them for four nights instead of three.
Her explanation as to January 2025 being the right time to progress (as proposed in her orders), the mother deposed “It’s to get Y through preschool. … It just means there would be an extra night in one of the weeks. So at the moment, I have her in most of my care during the current year, so it’s trying to just maintain that consistency for her.”
Whilst it appears the mother’s case of waiting until January 2025 is consistent with the minimisation of change at least for Y, that is not really the case. Y has already started trying to attend pre-school in both parents care. Progressing in January 2025 would offend ‘maintaining consistency’ just as much then as it would now. Where there is no issue with respect to risk or capacity, time with the father should progress now.
The expert maintained her view that “moving to ten/four contributes and provides just a greater sense of contact and continuity between the children and the father, that three nights is not quite enough across a fortnight, and that increasing it by one night I don’t hold the view is going to be detrimental to the children’s welfare. I mean I think, you know, quite the opposite. It has the opportunity to cultivate a more meaningful bond with the father, but there’s still majority time in the mother’s care. So I felt that was balanced.”[23]
[23] Transcript 14 March 2024, 12.
Therefore, the increase to four nights should be straight away.
What night should it be – Tuesday (mother) or Wednesday (father)?
Referencing the touchstone of minimisation of change, the additional night should be Wednesday in the first week because:
(a)The children are used to spending Wednesday night with the father in week two;
(b)The children are already spending Wednesday afternoon with the father in week one;
(c)It enables a smooth progression to a further increase in time with the father in the future by adding in Thursday night in week one;
(d)It enables a smooth progression to consecutive nights in school holiday periods.
The mother sought to shift the Wednesday time in both weeks to Tuesdays in order to have a wider distribution of time with both parents across both weeks and to avoid the children having to change over on Thursdays for only one night with the mother. However, this regime would require a greater amount of dismantling and disruption in the future in order to accommodate any further increases in time with the father.
Should there be an increase to five nights (father and ICL), or should any further increases be left to the mother’s discretion (mother)?
In cross-examination the mother gave evidence that her reason for not wanting to progress nights with the father beyond four in January 2025 was “because at this stage we need assurances about what the time will be, consistency and the routine, and because I don’t know what that will look like. The girls are still young.”[24] She conceded that the expert advised, and she agreed, that time could increase providing that the girls are “functioning well” and “I don’t know yet what that will look like and when that will be.”[25]
[24] Transcript 13 March 2024, 191.
[25] Transcript 13 March 2024, n 18 above, 192.
When pressed, the mother added “I think it’s when the girls are settled in school well, that the transitioning between houses is settled, that the children have adapted to the – the current existing arrangements well, and that they are coping with the transitions well within their behaviours and the routines between the houses.”[26]
[26] Ibid.
In my view, these indicators are well within the scope of being both achieved and recognised by both parents but there will likely be disagreement as to extent. The expert found merit in the idea that increases in time should be conditional on pre-determined events or circumstances but the identifying and measuring of those markers, in reality, is not possible. I am comfortable to extend that approach to say that certainty of orders is preferable to the likelihood of disagreement between the parents about readiness to progress, and certainly preferable to exposure to further proceedings.
The progression however should be after school Term 4 of this year such that the only change to the routine this school year will be the addition of the fourth night. At the commencement of the 2024 end of year school holiday period, by adding Thursday nights to week one provides for four consecutive nights from Wednesday to Sunday. Keeping the existing Wednesday night in week two provides for a progression to five nights per fortnight with minimal disruption or change. The commencement of the long school holiday period is an ideal time as it is as far away from any school-based changes as possible.
Should there be further increases in time with the father (father), or should any further increases be left to the (mother’s) discretion (mother and ICL)
Following the previously established grounds of minimisation of change and the preference for certainty over exposure to disagreement about readiness to progress, the issue of time arrangements should be set and not left to the mother’s discretion. I have also had regard to the expert’s advice that the parents continue in their respective therapies, which they have both committed to in the consent orders, with a focus on consistency of care between the two houses and appropriate and respectful communication of information about the girls.
As to the progression, the expert recognised that the difference between school term time and school holiday time in neurotypical children is good, but for these children, particularly Y so far, they may not have the resilience to adapt. The focus needs to be more on routine and consistency. The four plus one nights per fortnight commencing at the start of the 2024 end of year school holiday period should remain in place for 12 months until the end of Term 4 in 2025.
Thereafter, time with the father can progress:
(a)At the commencement of the 2025 Term 4 school holiday period, and during all school holiday periods thereafter, for six consecutive nights in alternating weeks; and
(b)At the commencement of 2026 school Term 1, and during each school term thereafter, for the same four plus one nights per fortnight in the established pattern.
Should there be an inbuilt review (father).
I decline to build into the orders a predetermined time for a review. My view is that it is likely to be a considerable source of stress and anxiety for both parents. It is likely to foster vigilance and impose pressure around progress because of a fixed deadline rather than allowing arrangements to develop naturally. The final arrangements already provide for blocks of six consecutive nights in alternating weeks during school holidays and five nights per fortnight during school terms. In light of the strong evidence in this case of the very poor prospects of the parents being able to achieve the kind of cooperative parenting required for equal shared care, adding pressure to try to do so is not helpful.
THE ORDERS
Both parents have my admiration and respect for their dedication to two girls very lucky to have them both. Whilst there remain differences in opinion, in my view, both parents have sufficient evidence to genuinely take comfort that despite their differences, ultimately each parent is coming from a place of love for X and Y.
The orders will not be a complete panacea for the many and varied challenges that will arise over the years to come caring for X and Y. I commend the expert report to the parties as an ongoing resource to them. The report is excellent. It is as incisive as it is thorough. There are complex and varied aspects to the circumstances of this family that cannot and are not dealt with by these reasons or the final orders. The report is a valuable guide for both parents going forward and in particular their efforts in co-parenting when responding to the children’s needs as they grow.
Orders 1 and 2 in relation to parental responsibility are made for the reasons herein in particular at paragraphs 83-101.
Orders 3 to 7 in relation to living and time arrangements are made for the reasons herein in particular at paragraphs 102-120 above.
Orders 8 to 34 are made in the terms sought by consent of the parties at Exhibit C2.
Order 35 is made, by consent during closing submissions, to include permission for the parties to provide copies of the Family Report, the Orders and these Reasons for Judgment to their respective treatment providers.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 29 May 2024
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