Cartwright and Cartwright

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARTWRIGHT & CARTWRIGHT

[2013] FCCA 1453

Catchwords:
FAMILY LAW – Final arrangements for care of children aged 9 and 6 years respectively – application of presumption of equal shared parental responsibility – exposure to family violence – abuse – older child asserted to have suffered serious psychological injury as a consequence of exposure to family violence – cultural & religious issues – responsibility for making decisions concerning children’s education and religious instruction – final orders made by consent in October 2010 – change in circumstances – time spending arrangements for children in context of finding of exposure to family violence – implication of different regimes for siblings – meaningful relationship – protective issues – best interests.

Legislation:

Family Law Act 1975, ss.4, 4AB, 10G, 11E, 11F, 60B, 60CA, 60CC, 61DA, 64B, 65C, 65D, 65DAA, 65DAC, 65DAE, 68L, 68LA

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461
T & N (2003) FLC 93-172
Bartel & Schmucker (No 3) [2012] FamCA 1094
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
CDJ v VAJ (1998) FLC 92-828
Amador & Amador (2009) 43 FamLR 268

Applicant:

MR CARTWRIGHT

Respondent:

MS CARTWRIGHT

File Number:

ADC 1241 of 2008

Judgment of:

Judge Brown

Hearing dates:

10, 11, 12, 13, 19 September 2013

Date of Last Submission:

19 September 2013

Delivered at:

Adelaide

Delivered on:

25 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr Margatich

Solicitors for the Applicant:

Baycity Lawyer

Counsel for the Respondent:

Harry Alevizos

Solicitors for the Respondent:

Harry Alevizos

Counsel for the Independent Children's Lawyer:

Mr Boehm

Solicitors for the Independent Children's Lawyer:

Alderman Redman

ORDERS

The parties each retain parental responsibility for making decisions concerning the religious and cultural upbringing and education (both current and future) of the children of the marriage X born (omitted) 2004 and Y born (omitted) 2007 as well as in respect of any changes in the living arrangements of the children which will make it significantly more difficult for the children to spend time with the father but otherwise the mother have exclusive parental responsibility for the children in respect of all other issues, including making decisions relating to their health, both physical and psychological.
The children live with the mother.
The child X spend time with the father as follows:
(a)Each alternate Sunday, commencing 29 September 2013 from 10:00am until 2:00pm;
(b)At (religion omitted) in 2014 and each alternate year thereafter;
(i)For a period of eight hours on the first day of (religion omitted) from 8:00am until 4:00pm;
(ii)Provided that if the child is in the father’s care she shall be returned to the mother at 8:00am on the first day of (religion omitted) in 2013 and each alternate year thereafter.
(c)At (religion omitted) in 2013 and each alternate year thereafter:
(i)For a period of eight hours on the first day of (religion omitted) from 8:00am until 4:00pm;
(ii)provided that if the child is in the father’s care she shall be returned to the mother at 8:00am on the first day of (religion omitted) in 2013 and each alternate year thereafter.
The child Y spend time with the father:
(a)On each Sunday from 10:00am until the commencement of Sunday the following Monday morning (or 9.30am if not a school day):
(b)At (religion omitted) in 2014 and each alternate year thereafter;
(i)For a period of eight hours on the first day of (religion omitted) from 8:00am until 4:00pm;
(ii)Provided that if the child is in the father’s care he shall be returned to the mother at 8:00am on the first day of (religion omitted) in 2013 and each alternate year thereafter.
(c)At (religion omitted) in 2013 and each alternate year thereafter:
(i)For a period of eight hours on the first day of (religion omitted) from 8:00am until 4:00pm;
(ii)provided that if the said child is in the father’s care he shall be returned to the mother at 8:00am on the first day of (religion omitted) in 2013 and each alternate year thereafter.
(d)For three consecutive days during each short school holiday period in the remainder of 2013, the days to be agreed between the parties and failing agreement to be from 9:00am on Tuesday until 9:00am the following Friday in the first week of each such school holiday period;
(e)For four consecutive days during each school holiday period in 2014, the days to be agreed between the parties and failing agreement to be from 9:00am on Monday until 9:00am the following Friday in the first week of each such school holiday period;
(f)For five consecutive days during each short school holiday period in 2015 and each year thereafter, the days to be agreed between the parties and failing agreement to be from 9:00am on Monday until 9:00am the following Saturday in the first week of each such school holiday period;
(g)For two periods of three consecutive days during the long end of year school holiday commencing in 2013, the days to be agreed between the parties and failing agreement to be from 9:00am on Tuesday until 9:00am the following Friday in the first complete week of the holiday period and from 9:00am on Tuesday until 9:00am the following Friday in the final complete week of the holiday period in question.
(h)For two periods of four consecutive days during the long end of year school holiday commencing in 2014, the days to be agreed between the parties and failing agreement to be from 9:00am on Monday until 9:00am the following Friday in the first complete week of the holiday period and from 9:00am on Monday until 9:00am the following Friday in the final complete week of the holiday period in question.
(i)For two periods of five consecutive days during the long end of year school holiday commencing in 2015 and each year thereafter, the days to be agreed between the parties and failing agreement to be from 9:00am on Monday until 9:00am the following Saturday in the first complete week of the holiday period and from 9:00am on Monday until 9:00am the following Saturday in the final complete week of the holiday period in question; and
(j)At any other times as agreed between the parties.
All handovers occur in the foyer of the (omitted) Police Station PROVIDED the mother’s brother not attends.
It be a condition of the father’s time with the children he not leave them in the sole care of the paternal grandmother.
The mother forthwith attend upon her general practitioner to request a referral to a psychologist for X at either (omitted) or (omitted).
The parties share equally in the cost of counselling for X.
The parties follow all reasonable recommendations of the psychologist as to, but not limited to:
(a)whether the parties should undergo any therapy courses and if so by whom and for what purpose; and
(b)enabling the psychologist to confer with the parties therapists where appropriate.
The psychologist’s therapy with X be directed to, but not limited to:
(a)the child’s relationship with each of the parents; and
(b)the findings of the court in the judgment of Judge Brown herein.
NOTING each party acknowledges X is stressed and anxious but do not agree the reasons why she is exhibiting such behaviour.
The mother provide the psychologist with copies of:
(a)the Family Assessment Reports of Dr A and her brief observational report dated 21/3/13.
(b)the Judgment of Judge Brown delivered with these orders.
Each party do notify the other in the event of an emergency or serious illness or injury affecting the said children via such third person as may be agreed between the parties.
The parties shall do all things and sign all documents necessary to enable the other to receive copies of the said children’s kindergarten and school reports, photographs, newsletters or any other information in relation to the said children’s progress as they may require, from time to time.
Each party do keep the other informed at all times of their current residential address and shall notify the other not less then twenty-eight (28) days in advance of any intended change, or such period of notice as is reasonably practical.
The parties be restrained and injunctions hereby granted restraining each of them from the following:-
(a)removing the said children from the Commonwealth of Australia without the other party’s prior written consent;
(b)abusing or harassing the other party and from denigrating the other party in the presence or within the hearing of the said children or allowing any other person to do so; and
(c)physically disciplining the said children or permitting any other person to do so.
The appointment of the Independent Children’s Lawyer be dismissed.
All applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Cartwright & Cartwright is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUITCOURT
OF AUSTRALIA
AT ADELAIDE

ADC 1241 of 2008

MR CARTWRIGHT

Applicant

And

MS CARTWRIGHT

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Cartwright “the father” and Ms Cartwright “the mother”[1] are the parents of X (a girl) born (omitted) 2004 and Y (a boy) born (omitted) 2007.
[1] The mother has referred to herself as Ms Cartwright in these proceedings. I will refer to her thus in these reasons for judgment or as “the mother”.
These proceedings are concerned with final parenting arrangements for the two children, particularly what time they should spend with their father and how parental responsibility for the children should be allocated between the parties.
Both the father and mother are (religion omitted). Both were born in (country omitted) – the father in (omitted) 1974; the mother in (omitted) 1978. (religion omitted) have been subject to persecution, in the past, in (country omitted). The father migrated to Australia, as a refugee from persecution, in 2000. He has lived permanently in Australia ever since.
The parties married, in (country omitted), on (omitted) 2003. The marriage between them was arranged by appropriate members of their respective families. The parties met on the day of their marriage. After about one month, the father left (omitted) and returned to Australia.
In Australia, Mr Cartwright completed the necessary formalities to apply for a spousal visa for Ms Cartwright, who immigrated to Australia in (omitted) 2004. She has lived in Australia ever since and regards it as her permanent home.
X was born in (omitted). Mr Cartwright came to (country omitted), following her birth, and accompanied the mother and X back to Adelaide. Y was born at the (omitted) Medical Centre, in Adelaide. The parties regard Adelaide as their place of residence in Australia.
There is no dispute between the parties that they finally separated on 27 September 2007, when there was an altercation between them. At the time, they were living in rented accommodation in (omitted). A neighbour called police to the home because of the degree of disturbance between the parties.
As a consequence of the involvement of the police, Mr Cartwright left the (omitted) property and moved in with a friend. The mother and the two children concerned continued to live at the (omitted) property. Ms Cartwright has been the children’s primary carer in the period since separation.
On 26 October 2007, Ms Cartwright applied for a domestic violence restraining order against Mr Cartwright. This order was granted on 1 November 2007. It was not formally contested by Mr Cartwright.
The nature of the parties’ relationship is the central evidentiary issue in the case. It is the mother’s position that the father subjected her to coercive and controlling behaviour, during their marriage, frequently assaulting her and subjecting her to verbal abuse and denigration.
Further, it is Ms Cartwright’s case that X was exposed to this family violence, prior to the parties’ final separation and recollects the father’s behaviour now. As a consequence of this exposure and her own experience of the father and his family, in the period since, the mother asserts that X is now apprehensive about spending time with her father.
This apprehension has manifested itself in symptoms of physical stress, including migraine headaches and asthma. X was hospitalised, for five days, in February 2012, at the (omitted) Medical Centre, but no organic causes were found for her symptoms, which were attributed to psychosomatic causes.
The parties have a lengthy history of litigation with one another, in the court, commencing with an application filed by the mother on 31 March 2008. At the time, the mother resisted the father spending any time with X and Y, in any circumstances, other than those which were rigorously supervised.
Mr Cartwright has maintained a consistent position in the case. It is his position that the mother has maliciously fabricated her claims of domestic violence against him and is intent on subverting his healthy and happy relationship with both children, particularly X. His subsidiary position, as advocated by his counsel, is that the allegations should not be given significant regard now because they relate to events which occurred many years ago.
It is further his case that the mother and members of her family have taken advantage of him in order to be able to migrate to Australia. Essentially, he asserts that the mother, in concert with the children’s maternal grandmother, have orchestrated the allegations of misbehaviour, on his part, so that he could be evicted from the former family home and Ms Cartwright and her relatives could live in it, in his absence.
Although the proceedings between the parties have been on foot, in one form or another, for a period in excess of five years now, there has been no formal adjudication of this central evidentiary issue. This has been because, in difficult circumstances, which involve a high level of cultural sensitivity, the parties have hitherto been able to reach a consensus, albeit an uneasy one, in respect of ongoing parenting arrangements for X and Y.
There is little doubt that the various agreements, which the parties have reached, from time to time, in respect of X and Y, have been marked by a significant level of reluctance and ambivalence, on both their parts. This state of affairs has, perhaps, made this fresh round of proceedings inevitable, as there must be some finding of fact made about the issue of family violence.
From the perspective of Mr Cartwright, he now regards it as having been contrary to his and the children’s interests, to have not refuted more effectively the mother’s claims of violence made against him. He is concerned that the children may be deprived of the benefits of having a meaningful level of relationship with him, if the court does not act decisively, at this stage.
From the mother’s perspective, she asserts that she agreed to previous consent orders, which allowed Mr Cartwright to spend time with X and Y, in order to avoid conflict with Mr Cartwright and in the hope that things would settle down between him and the children. She has also deposed that she had hoped that Mr Cartwright would change his behaviour.
It is the mother’s position that neither such outcome has eventuated. She asserts that the father has not changed his aggressive and controlling behaviour. Accordingly, it is now her case that, given X’s extreme level of anxiety, it is essential that the court acts to protect her (X) from further psychological harm.
In these circumstances, at this point, the father wishes to extend the time he spends with both children. On the other hand, the mother wishes to reduce the time the father spends with the children, particularly X. It is also Ms Cartwright’s case that she should have sole parental responsibility for the children.
The (religion omitted) community, in Adelaide, to which both parties belong, is one of about three or four hundred individuals comprised of about one hundred families. The community does not have a (church omitted) in Adelaide but meets for prayers and other community events at the (omitted) Community Centre.
The parties each attend the community centre, but separately. Both are devout (religion omitted). The circumstances surrounding the parties’ difficult separation have created controversy in their community. Individual members of the community have apparently taken sides and there has been gossip.
It is common ground between the parties that they are unable to communicate with one another in any significant or effective way. The father is open to the parties using a communication book or, if possible, emails.
The mother would prefer that the parties utilise a neutral member of their community to exchange information about the children. At present, the parties exchange the children, at the (omitted) Police Station, when they cannot be exchanged at their school.
There are other factors, which add to the level of complexity in the case. The father has remarried. His second wife is Ms N “Ms N”. The marriage between Mr Cartwright and Ms N was also an arranged one, which took place in (country omitted). Ms N has subsequently migrated to Australia, arriving in (omitted) 2010.
Mr Cartwright’s mother has also migrated to Australia. She arrived in (omitted) 2010. Mr Cartwright, Ms N and the paternal grandmother live together at premises in (omitted). Mr Cartwright is a self-employed (omitted). He runs (omitted) with two other partners.
Ms Cartwright has also remarried. Hers, too, was an arranged marriage, which also took place in (country omitted). Ms Cartwright’s husband has not provided any evidence in these proceedings. He apparently arrived, in Australia, through the sponsorship of the mother, in (omitted) 2012.
I have not been provided with any details as to the identity of Ms Cartwright’s husband. He did not give evidence in the proceedings. Ms Cartwright is currently in an advanced state of pregnancy. X and Y are aware that they are soon to have a baby brother or sister.
In addition, Ms Cartwright’s mother came to Australia in 2007, prior to the parties’ separation. It is Mr Cartwright’s case that he was not consulted about the important issue of the grandmother’s resettlement in this country. It is his case that ordinary notions of propriety dictated that he should have been consulted about the issue. He is resentful that he was not.
As I say, it is the father’s case that the maternal grandmother was instrumental in fuelling the disputation between the parties, during their marriage, which was ultimately instrumental in securing their separation. Mr Cartwright asserts that this was to the maternal grandmother’s overall advantage, as it secured her a place to live, which she has used to bring other members of her family to Australia.
Ms Cartwright’s case is that her mother came to Australia because of the concerns of her family, in (country omitted), that Mr Cartwright was mistreating her and not for any other ulterior motive. Subsequently the maternal grandmother was able to secure permanent residence in this country.
Neither of the grandmothers involved in the case has filed an affidavit in the proceedings. Ms Cartwright’s father and brother have also immigrated to Australia to join their wife and mother respectively. Previously, they lived in (country omitted). The maternal grandfather supported the mother during these proceedings by attending court with her, but has not filed an affidavit in the proceedings. Nor has Ms Cartwright’s brother.

Accordingly, the parties each have extended family in Australia, who share households with X and Y, from time to time. Although both Mr Cartwright and Ms Cartwright speak English well, (omitted) is their mother tongue and the language predominantly spoken in their respective households. It is also X’s first language.
Accordingly, a situation of some cultural complexity surrounds the parties and their children. Mr Cartwright would like to spend more time with X and Y, at times of religious significance to (religion omitted) people, such as (religion omitted) and (religion omitted).
In addition, in the past, he has worked long hours as the (occupation omitted) of a convenience store. His hours are now shorter. In these circumstances, he would also like to spend longer periods of time, with the children, during school holidays.
Ms Cartwright is uncomfortable with these proposals, although more open to them in respect of Y, who appears to be more resilient than X, although younger. Ms Cartwright is particularly concerned at X spending overnight time with her father. Ideally, she would prefer any time, between the two, to be subject to X’s wishes.
Mr Cartwright and Ms Cartwright are not the only parties to the proceedings. On 27 March 2012, it was ordered that X and Y be independently represented in these proceedings. This followed an earlier and similar order for independent representation of the children made 30 April 2008.
Throughout the proceedings as a whole, the children’s representative has been Ms Redman, an experienced Adelaide family lawyer. At the most recent trial, Ms Redman has briefed a barrister, Mr Boehm, to appear on her behalf. He was also instructed in the earlier proceedings.
The law requires Ms Redman and Mr Boehm to formulate a position, based on the evidence available to them, which they think will be in X and Y’s best interests.[2] As such, the submissions of the independent children’s lawyer are of equal importance to those of the parties themselves.
[2] See Family Law Act at section 68LA
Mr Boehm, on behalf of the independent children’s lawyer, does not dismiss the mother’s claim of having been subjected to family violence, during the parties' marriage, nor that X was exposed to this violence and this has had significant adverse psychological consequences for her. Accordingly, at this stage, the Independent Children’s Lawyer is more supportive of the mother’s position, in the case, than the father’s.
In the course of her responsibilities, as the Independent Children’s Lawyer, Ms Redman has subpoenaed relevant documents from various authorities, who have been involved with the family in the past. These authorities include SAPOL; Families SA; and the (omitted) Medical Centre.
In addition, in the past, Ms Redman commissioned Dr A to prepare two family assessment reports in respect of X and Y and their relationship with each of their parents and other matters relevant to the overall dynamics of the family. These reports are dated 17 September 2008 and 19 June 2009 respectively.
Dr A is a social worker by profession, who has been employed as a family consultant for many years. In this latter capacity she has written many hundreds of family reports. In addition, she has a doctorate in health and social sciences.
On an earlier occasion, Dr A has provided oral evidence to the court. From her formal observations of X, Dr A deposed that she had little doubt that the child had been exposed to family violence in the past. She was also of the view that the situation surrounding this family was very complex, not only in a cultural context, but also because of a significant power imbalance between Mr Cartwright and Ms Cartwright.
Dr A described Ms Cartwright as a reticent person, who was reluctant to talk about her familial situation to her. Dr A also described Ms Cartwright as exhibiting fear, anxiety and grave concern for the safety of her children vis-à-vis their father. Dr A considered the possibility that her emotional affect was “a pretence” to be “remote”.
Dr A gave this oral evidence, on 16 March 2009, in the context of earlier proceedings between the parties. As previously indicated, it is the case that these proceedings were consensually compromised by the parties prior to the court’s formal adjudication and any actual finding being made about the nature of the parties' relationship.
Due to the breakdown of the earlier consent orders, it now falls to the court to make any necessary finding regarding this issue of family violence. In my view, in all the circumstances of this case, the issue has not become any less potent because of the effluxion of time and the earlier consent orders made between the parties. Given the structure of the Family Law Act, it is an issue integral to the welfare of both X and Y.
Although Mr Cartwright accepts that X is likely to benefit from a process of appropriately targeted counselling, he refutes any suggestion that she is, in any way, fearful or apprehensive about him or spending time at his home.
He asserts that any problem relating to X is likely to have its origins in the mother’s home, whom he categorises as a neglectful mother. It is also his position that X feels neglected by her mother because of the circumstances surrounding her recent marriage.
In this context, in the lead up to the second hearing involving the parties, Ms Redman, with Mr Cartwright’s approval, arranged for Dr A to observe X and Y interacting with each of their parents and other members of their extended family. This observed interaction took place on 21 March 2013 and Dr A provided a further brief report in respect of it. In addition, Dr A gave additional oral evidence, to the court, on 13 September 2013.
The major rationale of this observed interaction was for a suitably qualified and independent person to ascertain what was the level of difficulty, if any, relating to X interacting directly with her father and other members of his family. It being the father’s position that there was no such difficulty and X had never expressed any reticence about spending time with him.
As such, it was his case that it would be self-apparent to such an expert that there were no obvious problems in his relationship with X. The Independent Children’s Lawyer was supportive of this type of intervention. With the benefit of hindsight, it might have been preferable that there had been a more exhaustive examination of the family and its dynamics, at this stage.
I acknowledge that these matters are difficult and intensely personal to each of the parties concerned. I also appreciate that it is not necessarily culturally appropriate for this secular court to adjudicate on the matters raised in the case. As previously indicated, it was Dr A’s impression that Ms Cartwright felt intense reluctance to speak openly about these issues. This accords with my own impression of her.
To this end, all the parties concerned, including the Independent Children’s Lawyer and the court, have attempted to resolve the matter without the necessity to have a concluded final hearing. Ms Cartwright, in particular, has deposed that she is prepared to accept a “middle way” between her position and that advocated by Mr Cartwright. In this context, she was prepared to accept the recommendations of the Independent Children’s Lawyer.
In an attempt to protect the parties from the worst aspects of adversarial proceedings and in order to encourage a focus on the best interests of the children, I have referred the parties to two child dispute conferences, which took place on 23 May 2012 and 18 December 2012. The latter conference included the children.
In each case, the child dispute conferences were convened by family consultant Ms K under the auspices of section 11F of the Family Law Act. I will provide further context in respect of both these conferences and indeed the further involvement of Dr A, at a later stage in these reasons. Pursuant to section 11E, the court may obtain advice from the family consultant convening such conferences. Accordingly, what is said, at such conferences, is not subject to privilege.
Accordingly, Ms K has reported to the court, her perception of what occurred at each of the family dispute resolution conferences, which she conducted. Regrettably, neither assisted the parties to resolve the issues arising between the parties, which centred on the allegations of domestic violence raised by Ms Cartwright and allegations of wilful disobedience to court orders, raised by Mr Cartwright.
The first conference occurred in the context of contravention proceedings instituted by Mr Cartwright. Ms K described Mr Cartwright as presenting a “litany of wrong doings on the part of Ms Cartwright and the maternal family”.
These included withholding the children from him; inadequately clothing them; and permitting members of her family to tease the children. He was particularly critical that Y was not allowed to sit on the “men’s side” during (religion omitted) community meetings.
In respect of the allegations of family violence, Mr Cartwright stated that, in the earlier proceedings, the court “threw the allegations out … couldn’t bring any evidence” and stated that he “was cleared”. This does not accord with my own recollection of the matter, but may refer to independent police proceedings involving the parties.
Mr Cartwright apparently indicated to Ms K that he considered the most appropriate means to resolve the various disputes between him and Ms Cartwright was for the children to live predominantly with him. Ostensibly at least, this is not his current position for the court, although he has formally advocated it in the past and returned to it during his recent oral evidence to the court.
In the December conference, Ms K interviewed the children. Y was described as a shy young person with insufficient language skills to be interviewed. In contrast, X was described as being relatively fluent in spoken English, although (omitted) was the language she spoke at home.
Ms K provided the following account of her interview with X:
“X was oriented to the purpose of the interview with the Family Consultant. In a discussion about how she had been prepared by her parents for the interview with the Family Consultant, the Family Consultant gained the impression that X had been inappropriately pressured by members of the father’s family as to what to say, and that X was significantly concerned about the repercussions from the members of the father’s household of expressing her own views. X indicated that her mother had prepared her by encouraging her to speak from her “heart”.
X presented as uneasy in discussing her thoughts and feelings about her father’s household, although the Family Consultant gained the clear impression that her brother, Y, received preferential treatment at her father’s house. The Family Consultant gained the impression that X was resistant to offering her view about the time spending arrangement with her father.
X was freely able to discuss her thoughts and feelings about her mother, indicating that she loved her mother and felt happy at her mother’s house and that her mother let her do “things” like play.
When asked if she could recall her mother and father living together, X indicated that she could recall fighting and arguments and that her mother had been physically hurt by her father “lots” of times.”
The involvement of Dr A, in March 2013, did not assist the parties to reach a resolution of the matter. In many ways, Dr A’s brief report of the event was inconclusive.
However, it was the tenor of Dr A’s report that she had some professional concerns about X’s presentation in the observation session. She wrote as follows:
“In summary, these interactions between the children and their accompanying adults, in the highly structured and safe confines of the observation room, seemed to be marked by Y’s readiness to act seemingly freely and X’s quiet compliance with each of her paternal family members.

X did not, as Y did not, appear frightened of any member of the group however her immediate compliance and very quiet presentation did not appear easily representative of a relaxed, spontaneous child. Y appeared less compliant and certainly more relaxed and voluble than his sister during the observations. It appeared difficult to frame any professional opinion or discern any significant indications that might clearly determine these children’s ongoing attitudes or views regarding their parents, stepparents, or grandparents, or their living with and spending times, from these observations.” [3]
[3] See Observation Report dated 21 March 2013 at paragraphs 16-17

Since Dr A’s most recent report, the parties have attempted to resolve the issues between them, which have particularly centred on X. In general terms, the father agrees that X should undergo some form of therapy to “fix” her problems.
The mother wishes X to have whatever treatment will help her. Regrettably, the parties have not been able to agree on the precise form of any such therapy and more particularly how it should be paid for.
In these circumstances, the case has proceeded inexorably towards trial. Neither the mother nor the father can be described as a wealthy person. They have each struggled to prepare for the trial, particularly Mr Cartwright.
As a consequence, there are many gaps in the evidence available to me, particularly the absence of evidence from the two grandmothers concerned and Ms Cartwright’s current husband. In addition, it is Ms Cartwright’s evidence that she obtained some counselling, for X, from a sister Ms M, who was assisting X for symptoms of anxiety. I have no report or other form of evidence from Ms M.
It also appears to be the case that, during 2012, X was being subject to bullying, whilst at school. Some boys in her class teased her for wearing a (omitted) and for being “(omitted)”. This teasing has ameliorated in 2013. However, at the time, Ms Cartwright wanted to change X’s school, to one where more (religion omitted) children attended. The parties were unable to reach any agreement in respect of this issue.
I have a brief letter from X’s school teacher, dated 29 August 2013, which indicates that X has been “anxious” about spending weekends with her father. However, I have not been provided with any elaboration on the opinions expressed in this letter in the form of additional evidence from any person at X’s school.
It is also apparent that, in addition to the pressures arising from her parental circumstances, X is subject to many other sources of potential stress, not least of which is the fact that her mother has remarried recently.
However, notwithstanding the shortcomings in the evidence, it is incumbent on the court that a decision be made, particularly given that it is clear that X is a child under some pressure, at the moment. These Reasons for Judgment are directed to resolving this complex factual and emotional situation.
The purpose of these proceedings is not to punish either of the parties for past failings or to determining who of them is the more deserving parent. The focus of the case must always remain on what is the best outcome, for the two children concerned, in what can only be described as difficult circumstances.
In summary, the focus for the court is on the following issues:
·Has X, in particular, been exposed to family violence;
·If so, what have been the psychological consequences of this for her and what are the implications of it, in terms of her ongoing relationship with her father;
·Has the presumption of equal shared parental responsibility been rebutted in this case, either by issues of family violence or because it is not likely to be in the best interests of the children concerned for it to be applied;
·How should parental responsibility, for the children, be allocated between the parties, particularly in respect of sensitive issues relating to religious instruction;
·Are the emotional and familial situations of X and Y different, if so, should different regimes pertain to their future parenting;
·What are the logistical and practical implications arising from there being different regimes for the two children;
·If X’s best interests dictate that she should undergo some form of therapy, what form should this therapy take and who should be involved in it;
·What the significance of the final consent orders of October 2010. In particular, should the rule in Rice & Asplund be applied and therefore no significant changes be made to the import of those orders;
·If it is ordered that X undergo some form of therapy, should the court oversee this process in some way;
·If so, what are the implications, for both the children and the parties themselves, of the proceedings being adjourned, particularly for a prolonged period.
Before turning to the evidence led by each of the parties, in the current round of proceedings, it is appropriate that the procedural history of the matter and other salient matters of chronology be particularised. It is a complex history.

History of the proceedings to date

The mother commenced the proceedings on 31 March 2008. She wished the children to continue to live with her and have only professionally supervised time with their father. Her case, at this initial stage, was that the parties’ marriage had been:
“… marred by frequent arguments, physical and emotional abuse towards me by the father. I fear for my safety and for my children’s wellbeing and that of my family in (country omitted) because of the father’s violent behaviour. I have been too scared to make reports to the police in fear of the repercussions of the father.”[4]
In her affidavit, the mother provided extensive examples of the father’s alleged violent behaviour towards her. I will return to this evidence in due course.
[4] See mother’s Affidavit filed 31 March 2008, at paragraph 7
The father responded to the Application on 6 May 2008. He denied the allegations of abuse. In fact, he deposed a belief that Ms Cartwright:
“…was endeavouring to set up a pattern of my alleged behaviour so she could seek to have her family come to Australia.”[5]
At this initial stage, it was Mr Cartwright’s position, that he had a loving and close relationship with both children and that X, in particular, was very comfortable in his presence.
[5] See father’s Affidavit filed 6 May 2008, at paragraph 6
The matter first came before the court on 30 April 2008. Given the cultural issues surrounding the parties and the allegations of serious family violence, it was clearly appropriate that the two children be independently represented and an order to this effect was made.
Pending further investigations, an order was made for the two children to live with their mother, but no order was made in respect of either X or Y spending time with their father, given the very serious allegations of family violence, which had been made.
On 24 June 2008, the parties agreed that a family assessment should be undertaken in respect of the family. In addition, it was agreed that Mr Cartwright should spend brief periods of time, with both X and Y, subject to the supervision of the (omitted) Children's Contact Service.
It was further ordered that these visits take place in the presence of an (omitted) interpreter, who was to be jointly paid for by both parties. After six visits, a report was directed to be prepared in respect of the supervised visits.
At this stage, the case was also allocated a final hearing date. This was the 16^th and 17^th March 2009. As previously indicated, the parties commissioned Dr A to prepare the family assessment report in anticipation of this hearing.
On 26 June 2008, Ms Redman filed an affidavit, to which was attached copies of relevant subpoenaed documents. These documents had been obtained from SAPOL; Families SA; and the (omitted) Medical Centre. In Ms Redman’s view, these were the only relevant official records, relating to the mother’s complaints of having suffered domestic violence.

The police records indicate that Mr Cartwright has no convictions of any nature whatsoever. However, the records also note that on two occasions police had attended, at the parties’ former family home, as a result of which it was considered that Ms Cartwright had sufficient grounds to apply for a Domestic Violence Restraining Order naming Mr Cartwright as the respondent.
The first significant incident occurred on 16 July 2006, when the mother summonsed police to the parties’ home. The narrative recorded by the police was that Ms Cartwright complained that Mr Cartwright had slapped her face and pushed her around in the home. She also indicated that behaviour of this type had been happening since the start of the parties’ marriage.
In addition, Ms Cartwright complained that Mr Cartwright had made threats against her family and daughter. She also feared that she “may have trouble within the (country omitted) community”. At the conclusion of the police involvement, Ms Cartwright indicated to the officers concerned that she would give Mr Cartwright “one more chance”.
The police elected to follow up this incident on 12 September 2006. On this occasion, they described Ms Cartwright as being “reluctant to speak with police on all occasions”. As a result of this indication, no further action was taken.
As previously indicated, the police attended at the parties’ former home, on the occasion of their separation, which occurred on 27 September 2007. Ms Cartwright reported feeling threatened by Mr Cartwright’s angry state.
The verbal altercation, which gave rise to the attendance of the police, apparently involved the maternal grandmother and was concerned with issues to do with her having come to live in Australia. Mr Cartwright apparently accepted the suggestion of the police concerned that he leave the home and stay with friends.
As their decision to follow up the incident of 16 July 2006 indicates, the police seem to have regarded the circumstances in which the parties found themselves to warrant some further scrutiny. As a consequence, they referred the case to Families SA. The relevant case note indicates that the incident was regarded as raising serious concerns. It was further noted that the incident may not have been an isolated one.
Y was born at the (omitted) Medical Centre in (omitted) 2007. Hospital notes indicate that Ms Cartwright indicated concerns to the medical staff, at the hospital, regarding her husband’s violent behaviour towards her and X. She is noted to have indicated that her husband would be “suspicious” if she stayed in the hospital too long.
The notes detail complaints made by Ms Cartwright of having suffered physical violence from Mr Cartwright, including when she was four or five months pregnant, when he “hit her very badly” and kicked her. The mother also complained about the father using bad language towards her.[6] As a result of this information, the hospital staff made a notification to Families SA.
[6] See annexure “Ms Cartwright 1” to the mother’s Affidavit filed 19 February 2009
Records provided by Families SA indicate that this notification was investigated. Upon being interviewed by a Families SA officer, the mother reported that she had a significant level of support from the (religion omitted) community in Australia and from her family in (country omitted), but did not feel supported by Mr Cartwright’s family. Ms Cartwright also reported that Mr Cartwright was not prepared to access counselling because it was his view that she was the problem not him.
The interview concerned appears to have occurred at the (omitted) Medical Centre. Ms Cartwright reported that she felt safe to return home. However, the officer was concerned that she was only willing to be discharged because of wanting to return home to X and was likely to be more frightened of Mr Cartwright than she was admitting. The mother also reported her perception that, if she left Mr Cartwright, her own family, in (country omitted), might be at risk of harm.
Families SA was involved with Ms Cartwright and the children, in the months following the parties’ separation. In November 2007, X is noted to have told an unspecified informant “There is something that I can’t tell you what it is or my father will slit my throat”. This disclosure was assessed as being threatening in nature and indicative of the possibility that the child had sustained some level of emotional injury.
Dr A’s first family assessment report was released to the parties and the court on 22 September 2008. To Dr A, Ms Cartwright alleged that Mr Cartwright had perpetrated numerous incidents of violence upon her, to which both children had been witness. These included the following:
·Mr Cartwright hitting X;
·Beating her, when she was pregnant with Y;
·Abusing her angrily for giving birth to a daughter;
·Denigrating her to the children by saying “your mother is like dirt”;
·Threatening to align the children, with him, against her until they “urinate upon your generations”;
·Threatening to cut X’s throat, if she heard the child speak of his behaviour;
·Threatening, in X’s presence, to throw the children and the mother into the sea;
·Hitting Ms Cartwright on the left side of her head;
·Accusing Ms Cartwright of ruining his reputation in the (country omitted) community in Adelaide.[7]
[7] See Family Assessment Report dated 17 September 2008, at paragraph 18
Ms Cartwright reported to Ms A that she continued to feel fearful of Mr Cartwright. She also indicated that she realised that she could no longer remain silent, about Mr Cartwright’s behaviour, because it would potentially put the children at risk.
I have already indicated that Dr A confirmed this evidence, during the first trial, on 16 March 2009. I accept Dr A’s assessment of Ms Cartwright’s demeanour and credibility.
To Dr A, Mr Cartwright denied ever having been violent toward his former wife. To the contrary, he asserted that Ms Cartwright had been violent towards him and had fabricated false stories about him, including in the (country omitted) community in Adelaide, which generally regarded her to be a “liar”.
Dr A described X as an extremely shy and reticent child. Dr A described her interaction with X, who was 4 years and 7 months at the time, as follows:
“X was asked to draw and she drew pictures of her mother and pictures of butterflies. When asked if she would like to draw her father X said “he’s not there, he’s bad, I don’t want to say it or someone will hear what I said.” She picked up a black crayon and drew black lines all over her drawings saying that is her father. She then drew a figure and called it her father.
X said that she does not like playing with her father and whispered to her mother to “tell her [the writer] we don’t have him anymore”. X said that she would not like to go to MacDonald’s with her father. X said to the interpreter the she would like to go to MacDonald’s with her mother.
X said that she does not want to see her father because “he was troubling my Mum and because he hit you that’s why I don’t want to”. X was speaking to the interpreter and her mother at the same time.” [8]
[8] Ibid at paragraphs 33-35
Dr A had a positive view of Ms Cartwright’s parenting capacity, characterising her as a courageous person, who had been able to seek assistance to protect her children, in what Dr A regarded as being difficult circumstances. As I have already indicated, it was Dr A’s view that there was compelling evidence to indicate that both the mother and X had been exposed to significant levels of family violence, in the past.
In this context, Dr A opined as follows:
“It appears that X recalls those threats and that she, some significant time later, continues to question her mother, and father, about those events. It appears likely that X may need professional assistance with sorting through those traumatic memories. X may be traumatise and unable not think about those events as her mother tries to encourage the child to do.”[9]
[9] Ibid at paragraph 49
In all these circumstances, Dr A was not in favour of the children spending unsupervised periods of time with their father. Rather, she advocated a cautious approach, involving counselling for X and that Mr Cartwright attend a family violence course, directed towards men, as well as a parenting course.
Accordingly, Dr A recommended a continuation of the regime whereby the children spent professionally supervised time with their father. She further considered that, in due course, consideration might be given to the father’s time being supervised by a mutually acceptable person, within the parties’ (religion omitted) community.
In this context, she recommended consideration being given to Dr M undertaking the supervision. He was, at the time, the head of the (religion omitted) community in Adelaide. Dr A had interviewed him in the context of the family assessment report process.
Dr M was assessed, by Dr A, as being supportive of Ms Cartwright’s account of having suffered mistreatment at the hands of Mr Cartwright. Dr M described Ms Cartwright as a “very honest and reliable person”.
The case returned to court on 16 December 2008. This was to confirm that the hearing, scheduled for March the following year, was still required. The parties confirmed that it was. More importantly, they were able to agree on an advancement of Mr Cartwright’s time with the children.
On this occasion, it was agreed that the father would spend time with both X and Y under the supervision of lay supervisors, Mr E and Ms J. From Ms Cartwright’s perspective, this arrangement did not proceed without incident. On 23 January 2009, she commenced proceedings to suspend the order for supervised time, involving Mr E & Ms J.
Ms Cartwright deposed that X had complained of having a stomach ache, whilst being at Mr E & Ms J’s home for the first visit. In addition, Ms Cartwright alleges that X disclosed that her father had slapped her, during the visit, and had also shown her a photograph of a woman in bridal attire, whilst telling her, in (omitted), “this is your new mother”.
It is common ground between the parties that they divorced, in Adelaide, in early 2009, on Mr Cartwright’s application and he married his current wife, Ms N, shortly afterwards.
In the lead up to the March trial, each party filed a lengthy trial affidavit. In addition, Mr Cartwright filed an affidavit from his friend, (omitted), who deposed that he had been present during the father’s time with X and Y, at the Mr E & Ms J’s home and had observed nothing untoward occurring between the father and the children.
In her affidavit[10] the mother provided a lengthy account of what she asserted were numerous incidents in which Mr Cartwright had subjected her to episodes of violent behaviour. She further asserted that Mr Cartwright exhibited a controlling attitude towards her during their marriage, the best exemplar of which was that she was not permitted to leave the home unaccompanied. She also asserted that the father’s violent behaviour escalated during her pregnancy with Y.
[10] Filed 19 February 2009
In the period following separation, specifically on 8 May 2008, Ms Cartwright asserted she received a threatening phone call from a person whose voice she did not recognise, but who made threats because she had “taken the children”. Ms Cartwright indicated that she had reported this incident to police.
It was also Ms Cartwright’s evidence that X had been exposed to her father’s violent behaviour in the past including seeing her father brandishing a knife in a threatening manner; the father cutting his wrists in her presence and being exposed in the father’s threats to drown her and her mother. At trial, it was the mother’s case that X remained traumatised.
The mother also provided a medical report dated 16 November 2007 from her general medical practitioner, Dr M. Dr M is a different person to the Dr M previously mentioned, who has been the community leader of the (omitted).
Dr M reported that she had been Ms Cartwright’s general practitioner for the last three years and the mother had complained to her that Mr Cartwright had physically assaulted her and exposed her to almost daily verbal abuse. Dr M diagnosed symptoms of anxiety in the mother and more recently clinical depression, which arose when she was pregnant with Y and which Dr M attributed to “extreme tension”.
In particular, Dr M wrote as follows:
“More recently Ms Cartwright has been feeling more affected by all of this as her daughter is getting older and understands much more what is going on, though she has been watching since her young age that her father has been physically and verbally abusing her mother and daughter’s behaviour gets very agitated and disturbed and I have seen evidence of the when she has accompanied her mother when she visits me. Lately when her father was talking to her mother and said that “I will through (sic) all of you in water” and threatened their lives, daughter asked mum later as if dad is really going to throw all of them in water and was very disturbed. Also husband has made comments like “if you left me, I will kill all your family in (country omitted)”. He also tore his family photos in front of the daughter and she was very disturbed. Ms Cartwright told me that husband makes no consideration whether the children are around or not and can start verbally or physically abusing her any time, and day, anywhere at home for no reason.
In July this year, she visited me because husband had hit her nose so hard that she feared that it was broken. O/E there was extensive soft tissue damage but fortunately no fracture.”[11]
[11] See exhibit “Ms Cartwright 3” to the mother’s Affidavit filed 19 February 2009
In his trial affidavit, Mr Cartwright described himself as being a person who was not by nature aggressive or violent. However, he acknowledged that the parties had had arguments, in the past, and these had been heated. He also acknowledged having inflicted a shallow cut on one of his wrists during one of these arguments but could not recall whether the children had been present.
The trial scheduled for 17 March 2009 commenced with evidence from Dr A, which occupied most of the day. Dr A’s evidence was compelling, particularly her view that X had almost certainly been exposed to a significant level of family violence and was suffering significant emotional consequences as a result.
Thereafter, at the instigation of the Independent Children’s Lawyer, the parties engaged in a process of protracted negotiations to determine what should be the next step in the process. Ultimately, it was ordered that the children continue to undergo a process of supervised time, with their father, at the (omitted) Children's Contact Centre, in the presence of an (omitted) interpreter. It being the mother’s position that she was concerned at the possibility that Mr Cartwright may attempt to influence X, in (omitted), which would pass unnoticed by the supervisor concerned.
Importantly, it was ordered that the father attend an anger management course and the mother complete a course of counselling to assist her with dealing with anxiety. Dr A was also requested to update her report. In these circumstances, the trial was adjourned, part-heard, to 6 and 7 August 2009. The parties themselves did not give evidence and so the issue of family violence remained un-adjudicated.
Dr A updated her report on 19 June 2009. Her report involved a further interview with X and an observation of the children with each of their parents. In her second report, Dr A noted that there had been a development since her initial report, namely that Mr Cartwright had been charged with assaulting the mother and had been accused of breaching a Domestic Violence Restraining Order made in the mother’s favour. Dr A also noted that, at the time of her second report, Ms N was shortly due to arrive in Australia.
Dr A characterised the matter as one being significantly impacted by cultural issues and an extreme level of parental conflict between the parties concerned. I agree with this assessment. In particular, the extreme dichotomy, regarding how each party viewed their previous relationship, described by Dr A in her first report, remained evident in her second report. There was no acceptance by Mr Cartwright that he had been violent and no withdrawal of this allegation by Ms Cartwright.
Ms Cartwright continued to express an extreme level of fear of her former husband. She maintained that X had strong memories of seeing her father’s violence in the past. In addition, the mother reported concerns that the father continued to denigrate her to X by making suggestions to her (X) about Ms Cartwright of extreme cultural impropriety.
For his part, Mr Cartwright was critical of Ms Cartwright and her mother and asserted that they were coaching the children to describe him as a violent person and prompting them to be fearful of him.
In addition, Mr Cartwright was reported by Dr A to be “doggedly” critical of community members, in particular of Dr M, whom he believed had sided with his former wife in the dispute between them. Once again, he denied any inappropriate behaviour towards Ms Cartwright.
In interview with Dr A, X reported having seen her father kick her mother in the stomach; that her father had said he would drop her and Y in the water and had cut himself on the hand when Y was crying a lot. X also reported her perception that her father was angry at her and she was angry with him.
Dr A described X’s account of these matters as being “clear and unequivocal”. It is implicit in Dr A’s assessment that she considered that X had been detrimentally affected by exposure to these various episodes.
In these circumstances, Dr A believed that therapeutic counselling for X should be made available as soon as possible. She opined that X was at risk of sustaining significant harm, if she did not receive appropriate assistance. In this context, Dr A wrote as follows:
“Research overwhelmingly supports a view that children’s mental health can be detrimentally affected by violence and or witnessing violence. It notes that the outcomes of such damaging parental lack of child focus, coupled with the trauma of experiencing parent to parent or parent to child violence, can bring serious and lifelong physical, emotional, psychological and social disruption and detriment to children’s lives.”[12]
[12] See family assessment report of Dr A dated 9 June 2009, at paragraph 66
Whilst noting it remained a matter for the court, Dr A indicated some level of concern that Mr Cartwright exhibited a significant level of antagonism towards Dr M and other members of the (religion omitted) community, whom he considered were conducting some form of vendetta against him.
In this context, Dr A recommended that, if the court considered that the children had been exposed to family violence, Mr Cartwright needed to undergo a course of counselling to assist him to take responsibility for his actions, rather than blaming others.
The import of Dr A’s second report was that she recommended a raft of measures, for Mr Cartwright, Ms Cartwright and for X to provide each of them with support to ameliorate the broken relationships between them.
In Mr Cartwright’s case, it was recommended that he attend either individual or group counselling services aimed at encouraging men to take responsibility for the wellbeing of their children and to assist them to identify behaviours that may be detrimentally affecting them. In her report, Dr A recommended a specific person at Uniting Care Wesley, whom she recommended Mr Cartwright consult.
In respect of Ms Cartwright, Dr A recommended that she attend a course of counselling to assist her to gain a greater understanding of the effects of parental conflict and violence upon children. She too was provided with a specific person to contact. Until the completion of these interventions, Dr A recommended the continuation of supervised time between the children and their father.

On the resumption of the case, on 6 August 2009, the parties agreed to these recommendations. In these circumstances, the case was once again adjourned until December 2009. At this time, the mother also confirmed that she had arranged for X to attend counselling at the Children and Adolescent Mental Health Service (CAMHS).
On 13 October 2009, Ms Redman provided a report from the (omitted) Children's Contact Centre, which detailed what had occurred at six supervised visits, occurring between 30 May and 8 August 2009. The visits occurred fortnightly and each was approximately two hours in duration. An (omitted) interpreter was present. Nothing out of the ordinary was recorded in any of the visits concerned.[13]
[13] See affidavit of Julie Joy Redman filed 13 October 2009
Later again, Ms Redman filed another affidavit, to which was attached a further report from the Children’s Contact, which provided details of a further five visits, which occurred between 26 September and 5 December 2009. Again the visits in question appear to have passed without incident.[14]
[14] See affidavit of Julie Joy Redman filed 19 March 2010
This was the background to consent orders being made, on 16 December 2009, for Mr Cartwright to spend time with X and Y, at his home, provided a nanny or other suitably qualified child care worker was present. Mr Cartwright was also directed to converse with the children only in English.
It was hoped that this would be a helpful and incremental intervention, prior to the resumption of the trial, which had been rescheduled for March 2010. Clearly, in the period prior to the resumed trial, a cautious but incremental approach had been taken in respect of the issue of the children spending time with their father. No doubt Mr Cartwright would have wanted to have proceeded faster, but he was persuaded to adopt this gradual approach, as was Ms Cartwright.
In the lead up to the March trial, each party filed further affidavit material. In addition, an affidavit was provided by Ms H, a nanny employed by Nanny SA. She has overseen the children’s time with their father between 25 January and 20 February 2010. These visits too largely occurred uneventfully, other than for a dispute arising between X and her father, concerning the child not wanting to remove a necklace placed on her by her mother.
On 22 March 2010, the father confirmed that he had completed five therapy sessions with a psychologist, as recommended by Dr A. In addition, he indicated that he had completed a Kids R First program and an anger management course.
In her updating affidavit material, Ms Cartwright confirmed that she had completed six sessions of counselling, with the counsellor nominated by Dr A. In addition, she too had completed the Kids R First parenting program.
In her affidavit, Ms Cartwright continued to express anxiety about the children visiting their father at his home, notwithstanding the presence of an independent and trained person, in the form of Ms H.
Another significant development, which occurred shortly prior to the resumption of the hearing, was that the police charges laid against Mr Cartwright, in respect of Ms Cartwright’s allegations of family violence, were dismissed by the Adelaide Magistrates Court.
Mr Cartwright has deposed that the charges were dropped because an independent medical expert apparently provided a report to police which indicated that the alleged injuries to the mother’s nose, detailed by the mother and confirmed by Dr M, were attributable to sinusitis, rather than physical force as Dr M had reported.[15] The mother has never specifically refuted this allegation and, as far as I know, no further evidence has been led in respect of it.
[15] See affidavit of the father filed 14 November 2011, at paragraph 12
Accordingly, in the lead up to the March hearing, each of the parties had done what had been recommended to them by Dr A. However, in practical terms neither specified in their affidavit material what had been personal consequences, for each of them, of this process of intensive counselling.
To adopt psychological jargon, neither party had provided information as to the degree of insight, if any, such a process had given them, particularly as to the consequences of their prior conduct on the children, particularly X. In addition, the mother did not provide any evidence from X’s counsellor, at CAMHS, regarding the treatment X had received.
Up to this stage, under the auspices of the Independent Children’s Lawyer, the parties had agreed on a gradual and cautious approach to Mr Cartwright spending time with the two children concerned which had involved a period of twelve months of supervision over short visits occurring initially fortnightly and then weekly.
This was the background to the parties being able, ostensibly at least, to agree on a comprehensive set of orders which were made on 25 March 2010. The orders envisaged the children spending gradually increasing periods of day time with their father culminating in the children spending overnight time from Sunday lunch time to Monday morning.
At the time, Mr Cartwright was employed six days per week at a busy (omitted) and only had Sunday off. Accordingly, it was not then feasibly possible for him to spend longer periods of time the children. In addition, given the ages of the children, no consideration was given to holiday time. The children were to be exchanged between the parties at the Children’s Contact Service at (omitted).
Issues remained outstanding between the parties regarding religious matters pertaining to the children. In particular, Ms Cartwright wanted X to attend the (omitted) program. As I understand it, this is a religious school, similar to Sunday School, specifically for girls. Mr Cartwright was somewhat reticent, as I recall about the program.
I felt both uncomfortable and unqualified to resolve this potentially significant issue within the confines of this secular court. Accordingly, I referred the parties to mediation within their community.
It proved to be a tortuous process to resolve the outstanding issues. However, notwithstanding that each party was directed to file an affidavit in respect of these religious issues, neither took the opportunity to do so.
Ultimately, on 20 October 2010, the parties were able to agree on final orders in respect of arrangements for X and Y’s care. The orders were in the following terms:
1.That the mother and the father have equal shared parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2007 (hereinafter referred to as “the said children”).
Major Long-term Issues
2.That the mother and father shall consult, whether directly or indirectly, about all major long-term issues affecting the said children including but not limited to issues about:-
(a)the said children’s education (both current and future); and
(b)the said children’s religious and cultural upbringing; and
(c)the said children’s health; and
(d)the said children’s name; and
(e)changes to the said children’s living arrangements that make it significantly more difficult for the said children to spend time with one of the parties.
3.That to enable the mother and father to make decisions relating to the health of the said children, each party shall notify the other (or such person as may be nominated by them in advance):-
(a)in the case of a medical emergency, immediately; and
(b)in the case of illness or injury that does not constitute an emergency, within twenty four (24) hours of the injury or illness occurring.
Children’s Living Arrangements
4.That the said children shall live with the mother and spend time with the father as follows:-
(a)in each two week period over the course of twelve weeks commencing Sunday, 10 October 2010:-
(i)     in weeks 1 and 2:-
from 4.00pm Sunday until the commencement of child care / school on the Monday (or 9.30am if not a child care / school day);
(ii)    in weeks 3 and 4: -
from 3.00pm Sunday until the commencement of child care / school on the Monday (or 9.30am if not a child care / school day);
(iii)   in weeks 5 – 8:-
From 1.30pm Sunday until the commencement of child care / school on the Monday (or 9.30am if not a child care / school day);
(iv)   in weeks 9 and 10:-
From 12.00noon Sunday until the commencement of child care / school on the Monday (or 9.30am if not a child care / school day);
(v)     in weeks 11 and 12:-
From 11.00am Sunday until the commencement of child care / school on the Monday (or 9:30am if not a child care / school day);
(b)thereafter:-
(i)     in each week from 10.00am Sunday until the commencement of child care / school on the Monday (or 9.30am if not a child care / school day);
(c)at (religion omitted) in 2012 and each alternate year thereafter:-
(i)     for a period of eight (8) hours on the first day of (religion omitted) upon the father’s request, from 8.00am until 4.00pm
PROVIDED THAT if the said children are in the father’s care they shall return to the mother at 9.00am on the first day of (religion omitted) in 2011 and each alternate year thereafter;
(d)at (religion omitted) in 2011 and each alternate year thereafter:-
(i)     for a period of eight (8) hours at 8.00am on the first day of (religion omitted) upon the father’s request, from 8.00am until 4.00pm
PROVIDED THAT if the said children are in the father’s care they shall return to the mother at 8.00am on the first day of (religion omitted) in 2010 and each alternate year thereafter;
(e)such further and other times as may be agreed between the parties.
Handover
5.That all handovers which do not occur at the said children’s child care or school shall take place:-
(a)at the Relationships Australia, (omitted) Children's Contact Service; and
(b)in the event the said Children’s Contact Service is unavailable with the mother and / or her nominee collecting and returning the said children from inside the (omitted) Police Station and if that is not available then inside the (omitted) Police Station or at such other place as may be agreed between the parties.
6.That the parties comply with reasonable directions of any employee at the Children’s Contact Service and do follow all guidelines regarding the use of that Service.
Further / Other
7.That each party do keep the other informed at all times of their current residential address and shall notify the other not less than twenty eight (28) days in advance of any intended change, or such period of notice as is reasonably practicable.
8.That the parties do use a communication book which will travel with the said children at handover for the purpose of communicating issues solely in relation to their care, welfare and development with each party to sign and acknowledge that they have read the other party’s communications in the book on each occasion.
9.That each party do notify the other in the event of an emergency or serious illness or injury affecting the said children via such third person as may be agreed between the parties.
10.That the parties shall do all things and sign all documents necessary to enable the other to receive copies of the said children’s kindergarten and school reports, photographs, newsletters or any other information in relation to the said children’s progress as they may require, from time to time.
11.The parties be restrained and injunctions hereby granted restraining each of them from the following:-
(a)removing the said children from the Commonwealth of Australia without the other party’s prior written consent;
(b)abusing or harassing the other party and from denigrating the other party in the presence or within the hearing of the said children or allowing any other person to do so;
(c)physically disciplining the said children or permitting any other person to do so.

Events since the final orders of October 2010

It seems to be the case that between March 2010 and August 2011, the orders for Mr Cartwright to spend time with X and Y passed relatively incident free. More often than not, the children were exchanged at the (omitted) Police Station. It also seemed to be the position that the use of the communication book fell into abeyance fairly soon. Both parties blame the other for this eventuality.
It is common ground that there was an incident, involving X, which occurred on 7 August 2011, when the children were spending time with their father. This incident led to a fresh round of proceedings between the parties.
These proceedings were instigated by Mr Cartwright, who filed an Application on 14 November 2011 seeking that the mother comply with the orders of 20 October 2010 and that he be provided with make-up time in respect of periods lost to him to spend with the children as a consequence of the mother withholding the children from him.
In his Affidavit filed in support, Mr Cartwright, once again, reiterated his position that the mother had fabricated the claims of family violence against him. In addition, he specifically pointed to the circumstances surrounding the dismissal of the police charges against him, to which reference has already been made. At this stage, it was his position that the mother was speaking of him, to the children, in a derogatory manner, referring to him as “a dog”.
Prior to the return date of his application and before Ms Cartwright had responded to it, the father changed solicitors. This led to a contravention application being filed on Mr Cartwright’s behalf on 1 February 2012 alleging that the mother had not made the children available to spend time with their father from August onwards.
The father’s initiating application was listed before the court, for the first time, on 9 February 2012 which was approximately a fortnight prior to the date scheduled for the contravention application. Ms Cartwright had not filed any responding material. Mr Cartwright was desperate to see the children and the hearing was tense and difficult for all concerned, myself included.
At this stage, it was the mother’s position that X was resistant to spending time with her father because of an incident which had occurred involving the children’s paternal grandmother. I did not have full details of this incident.
In what were undoubtedly difficult circumstances, with the assistance of the court, it was agreed that the father’s time with the children would resume, but only in day time hours, subject to a condition that the children would not be left in the sole care of the paternal grandmother. It was also directed that Ms Cartwright’s brother not attend at any handover of the children.
These were provisional orders which did not involve any findings of fact. They were intended to strike a balance between the competing concerns of the parties prior to the tender of any further evidence. I was also hopeful that the former final orders could be reinstated at a later date.
It was Mr Cartwright’s position that Ms Cartwright had no reasonable justification for withholding the children from him. In particular, he was greatly disappointed that the children had not been able to enjoy (religion omitted) with him the previous year. In addition, he complained that the mother’s brother had abused him at handovers of the children.
In response to the father’s application, the mother did not oppose the children resuming their time with their father in accordance with the orders of 20 October 2010. However, at an interim stage, she wished X’s time with Mr Cartwright to be suspended “until such time as the child is medically fit to spend time with the father.”
In addition, she wished an injunction to be made restraining the father from allowing either X or Y to be in the sole care of the paternal grandmother and from allowing her to reprimand or otherwise chastise the children.
In support of the orders sought in her response, Ms Cartwright filed an affidavit in which she set out the circumstances from her perspective which had resulted in the children being withheld from spending time with their father. Her evidence can summarised as follows:
·On 7 August 2011, X had a viral infection and had been prescribed a course of antibiotics;
·During the course of her visit, X had vomited on her paternal grandmother’s clothes;
·This causes the paternal grandmother to become angry which allegedly resulted in her slapping X, with some force, on the face;
·This hurt and shocked X, who sustained bruising to her left eye;
·Ms Cartwright had consulted her doctor about X’s injuries and a report had been made to the Child Abuse Hotline;
·Ms Cartwright also reported the incident to the (omitted) Police Station;
·A police officer, Mr T, had been appointed to investigate the matter and he advised not to send the children to spend time with the father until investigations had been completed;
·As a consequence of this advice and because of her fears about the children, Ms Cartwright elected not to provide the children to spend time with their father;
·Ms Cartwright consulted her solicitor about the legal implications of her decision and was advised that she should bring an application to suspend the orders. However, she had exhausted her legal aid funding in this regard and did nothing formally.
Ms Cartwright further deposed that Y had been attending to spend time with his father as a consequence of the orders of 9 February 2012, but X had not. She deposed that on 12 February 2012 X had been hospitalised at the (omitted) Medical Centre for a period of five days and accordingly was medically unable to spend time with Mr Cartwright. A medical certificate was provided to this effect.
On 6 March 2012, Mr Cartwright amended his application. He sought orders that both X and Y should live predominantly with him and spend time with their mother at times to be agreed. In support of his application, Mr Cartwright asserted that there had been a significant change in circumstances since the orders of October 2010. In summary, he asserted as follows:
·The mother was deliberately trying to hamper or destroy his close relationship with the children;
·Y was displaying a noticeable lack of verbal communication skills which Mr Cartwright attributed to a failure on Ms Cartwright’s part to attend appropriately to his educational needs;
·The mother had been denigrating him to the children;
·The mother was jeopardising X’s physical and psychological health;
·The earlier report writing process of Dr A had been unfair to him because she had been unduly influenced by adverse reports by Dr M, the former leader of the (religion omitted) association.
Whilst Mr Cartwright accepted that X had been an inpatient at the (omitted) Medical Centre, he did not accept that the child had a valid reason to be there. In this context, he deposed as follows:
“I say further that upon speaking to Dr T of the (omitted) Medical Centre, and who provided the first letter alluding to X’s possible psychological health condition, that she informed me that she was compelled to write that letter at the insistence of the mother despite asserting that there was nothing clearly wrong with X. It is my firm belief that the mother is creating a form of psychological illness in X that would not exist but for the mother’s saying it does so as not to facilitate X spending time with me. I say that the mother is recklessly creating the need for X to be treated for possible psychological health problems.”[16]
[16] See the father’s affidavit filed 6 March 2012, at paragraph 48
Against this background, the solicitors for Mr Cartwright sought the re-appointment of the Independent Children’s Lawyer. It was the position of the solicitors for the mother that the father’s claim of neglect and abuse of the children were tactically motivated.

Dr A was not in favour of making X’s time with her father subject to a formal condition that it occur only in accordance with her wishes. Dr A agreed that there needed to be more structure in this regard and some form of relationship needed to be maintained between father and child. She did not doubt Mr Cartwright’s love for X.
Dr A conceded that significant logistical difficulties would arise if the court made orders mandating different arrangements for the care of the two children concerned. However, in Dr A’s view, the logistical difficulties were a small price to pay for protecting X from the possibility of ongoing emotional dis-regulation, as had been described to her.
The central dilemma arising from Dr A’s evidence is easily stated. She could not guarantee that the course of therapy for X which she recommended, would result in the child being ready to resume a more extensive relationship with her father at any specified time in the future, if at all. As I have previously indicated, it is Dr A’s view that the solution to the problem currently surrounding X lies in her parents rather than in X herself.
Although, as I have indicated earlier, I regret that I did not order a more extensive family report to be prepared in this case in the lead up to this final hearing, I have no reason to dismiss Dr A’s current evidence. I accept her recommendation that the court’s focus should be on providing X with respite from her current situation rather than on an attempt to repair her relationship with her father.

Determining the best interests of the children concerned – s.60CC factors

(a) The primary considerations

The applicable legislation requires me to consider two criteria primarily – protective concerns relating to the exposure of a child to abuse, neglect and family violence – and the benefits of a child having a meaningful relationship with both of his or her parents. As previously indicated, the former criterion is to be given pre-eminence in appropriate cases.
I am satisfied that X has been directly exposed to family violence emanating from her father and this exposure remains vivid for her. It has caused her to suffer and continue to suffer a significant level of harm. As such, I find that she has suffered abuse within the statutory definition provided by s.4 of the Family Law Act.
The need to protect X from the ongoing sequellae of this abuse needs to be given priority at this stage. This leads me to the conclusion that the current regime for her to spend time with her father should be reduced, as Dr A proposes.
Mr Cartwright loves X. This makes the case heartbreakingly difficult. Notwithstanding the harsh findings which I have been compelled to make about him, the evidence indicates that between separation and 2010, Mr Cartwright did everything demanded of him to spend time with both X and Y.
This included the lengthy process of supervised time and the courses of counselling and programs recommended for him by Dr A. That he remained so steadfast and fulfilled these recommendations is to Mr Cartwright’s great credit.
However, there is no evidence to indicate any significant change of attitude on his part as a result of these various interventions certainly not towards Ms Cartwright, whom he regards as an unmitigated schemer and manipulator who is of no worth to the children.
Only one conclusion can be drawn from Mr Cartwright’s evidence and it is that he regards Ms Cartwright as the source of all the problems in the family, rather than anything which is attributable to his conduct. This attitude is at odds with the facts of this case as I have found them to be.
Nonetheless, because of his love for her, Mr Cartwright retains the potential of being able to benefit X. Children need the love and approval of their parents and a sense of identity which comes from knowing a parent intimately and at first hand.
For these reasons, the court needs to be careful to ensure there is at least some possibility that the relationship between X and the father may be repaired in time.
In contrast to X, Y seems to be a more robust child emotionally who is comfortable interacting with his father. However, family violence still provides a latent threat to him. Children learn their behaviour from their parents. A parent who is violent or is disparaging of the other parent to a child is not a good role model for any child.
However, at this stage the evidence indicates that Y is likely to benefit from having a meaningful level of relationship with his father who lionises the child. The question is what orders should be made to facilitate that relationship given the issues relating to family violence; the mother’s anxiety about Mr Cartwright; and the fact that very different arrangements pertain to X.
The rationale of section 60CC(2)(a) is that children benefit in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits which will come to the child concerned if his or her parental relationships are enhanced. I accept that to be meaningful, parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
A relationship does not necessarily become better if a parent spends more time with a child, but for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”.
In my view, the difficult circumstances surrounding both X and Y militate against there being any large scale changes in arrangements for Y’s care at this stage. However, Ms Cartwright is open to the possibility of Y spending some longer periods of time with his father during the course of each school holiday period.
The prospect of Y spending some holiday time with his father is likely to add to the level of meaning in the relationship between the two and be of benefit to Y. Mr Cartwright wishes to be able to take Y to community meetings held regularly in New South Wales. I accept that I should make orders which will gradually increase the time in holiday periods which Y spends with his father.
There is some possibility that X may be persuaded in time to follow her younger brother and spend more time with her father in future. However, such an outcome cannot be assured.
More importantly, I am satisfied that it would be inherently contrary to X’s best interests to compel her to either spend the current amount of time stipulated by the October 2010 order or indeed more time in order to, in some way, compulsorily inculcate some level of meaning into her relationship with her father.
The concept of meaning in parental relationships envisaged by the applicable legislation is to be considered in a beneficial sense. I am satisfied that it would not benefit X to make her spend more time with her father in the hope that this will in some way ameliorate the current difficulties. To the contrary, on the basis of the evidence available to me, I believe that such an outcome would be positively detrimental to X.
The chief pitfall of reducing X’s time with her father is that it may mean that she may lose the opportunity to have an intimate and comfortable parental relationship with her father. In the short to medium term, given the failures of the mechanisms inaugurated prior to the October 2010 orders to regulate her emotional functioning, there can be no guarantee that her regime of time with her father can ever be brought into line with that of Y. I am well aware of the moment of my decision in this regard both potentially for X and for Mr Cartwright.

(b) The additional considerations

(a) The children’s wishes

In my view at the current stage there is no definitive evidence which definitively assessed the children’s views in the matter. However, it appears more likely than not that X’s preference is not to spend time with her father for any extended period of time.

(b) The nature of the children’s relationship with each of their parents and significant others

The children know both of their parents well. The evidence indicates to me that both X and Y derive a greater level of emotional support from their mother than their father. This is a significant factor in the case and militates against the children spending more time with their father, particularly given that findings of family violence have been made in the case.
The children are members of a wide extended family on both their father and mother’s aspect. As neither grandmother gave evidence in these proceedings, it is difficult to assess the significance of these relationships to the children.
Both parties have recently remarried. I am satisfied that the children have a close and warm relationship with Ms N. There is scant evidence regarding the children’s relationship with Ms Cartwright’s current husband.
In these circumstances, it is not beyond the bounds of possibility that X has reacted adversely to him. However, his arrival in Australia occurred after X’s hospitalisation, at the (omitted) Medical Centre in early 2012 when the child is noted to have exhibited signs of stress.
I would assume that the children have a close relationship with one another given they are siblings and share a household together. It has been the perception of the social scientists involved in the case that X perceives that her brother Y has a more privileged position in the father’s household than she does.
It is difficult to ascertain whether this is so or not and what are its implications for the quality of the relationship between the siblings. More significantly in the circumstances prevailing, Dr A did not counsel against there being different arrangements for the two children concerned.

(c) The extent to which each of the children’s parents has taken, or failed to take, the opportunity to be involved in decision making and to spend time or communicate with the children.

There is no evidence to indicate that Mr Cartwright has ever failed to take the opportunity to be involved in decision making in respect of either X or Y or has ever failed to spend time with the children. As I am at pains to point out to Mr Cartwright, I accept that he loves both children deeply and is interested in every aspect of their lives.

(ca) Provision of financial support for the children

Issues relating to the financial support of the children were not examined in any detail in these proceedings. As such, this criterion is not relevant to the court’s deliberations at this stage.

(d) The likely effect on the children of any changes in their circumstances

The change for X, advocated by both Ms Cartwright and the Independent Children's Lawyer, is a significant one. However, in my view, the benefits of this change for X greatly outweigh any deficits. I accept that X is in need of a period of rest and recuperation from her current conflicted circumstances.
No significant changes are proposed in respect of Y, other than he will spend time with his father and paternal family in the absence of X. There is no evidence to indicate that he will not be able to take this change of circumstances into his stride.

(e) The practical difficulties and expense of the children spending time and communicating with each of their parents

Relations between the parties and with other individuals within their respective families are currently extremely strained. This has necessitated the exchange of the children occurring at a police station and the making of injunctions restraining nominated family members from being present.
Otherwise, the parties live in reasonable distance of one another in suburban Adelaide. Both have access to private transport. The issues arising from there being different regimes for the children to spend time with their father are inconvenient but not insurmountable.

(f) The capacity of the parties to provide for the children’s emotional and educational needs

In my assessment, both of the parties are committed to the children attaining their full educational potential. The issue of who of the parties is better placed to provide for the emotional needs of the children is in a different category.
In my view, the evidence strongly indicates that Ms Cartwright is far better placed to provide for X and Y’s emotional needs than is Mr Cartwright. In my view, given the findings which I have made in this case, this is a central consideration.
I accept the mother’s evidence that X is discomforted by her perception that Mr Cartwright is very critical of Ms Cartwright. The tone of Mr Cartwright’s evidence given in these proceedings is that Ms Cartwright is a person of no worth. Ms N’s evidence was that X does not mention her mother when she is in her father’s household because she feels neglected there.
A more logical explanation, in my view, as to why X feels unable to acknowledge her mother whilst she is with her father, is that she is well aware that such a reference will meet with her father’s disapprobation. Such a state of affairs is inimical to the maintenance of emotional stability for X. Rather, it is likely to cause her psychological harm given the closeness of her relationship with her mother.
Mr Cartwright and Ms N have deposed that they do not discuss the mother and her household with the children in any direct way. This appears to me to be unlikely. However, even if it is the case it seems likely that Mr Cartwright may denigrate the mother to the children in a passive or indirect way.
I do not think that it is unreasonable for me to conclude that this state of affairs may lead to the children, particularly X, becoming confused about their identity and this in turn, may cause them to feel emotional confusion or to question their emotional loyalty to their mother. This later concern may be particularly telling so far as Y is concerned, given his likely status in the father’s household.

(g) The children’s maturity, sex, lifestyle and background

The children come from an ancient and honourable tradition, which is central to both their parents’ sense of identity. Both Mr Cartwright and Ms Cartwright are devout (religion omitted), who wish X and Y to share the same religious orientation.
Both X and Y speak (omitted) at home. They attend the (omitted) meetings, which include prayers, regularly with each of their parents. Accordingly, the cultural traditions and background of each of the parties is congruent.
In this context, I accept that it is important to both Mr Cartwright and Ms Cartwright that they be able to attend such celebrations as (omitted) and (religion omitted) with the children. For understandable reasons both are likely to want to be with the children on this important and joyous occasion. Necessarily, this is a difficult issue and the court must be alive to the cultural sensitivities arising.
I have already alluded to the objects of the part of the Family Law Act and the principles underlying them [section 60B(1) & (2)]. One of these principles is that “children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In this case, both X and Y share the same cultural inheritance with both their mother and father and are entitled to share and enjoy that background with both their parents and indeed the wider aspects of both their maternal and paternal families.
I have been discomforted by the apparent involvement of other community members from the (omitted) in the vitriolic dispute between the parties. In addition, in the past, I have hoped that some of the disputes arising between the parties could be mediated through the involvement of community leaders. This has not proved to be possible.
The parties each seek the assistance of this secular court to resolve the issues in dispute between them. Notwithstanding this fact, the religious instruction of the children is of great significance to each of them. As a consequence, I am troubled at the prospect of conferring major long term responsibility for the children in respect of both religious and educational matters on one of the parties alone.
I am also concerned that I have been provided with little evidence regarding matters relating to the parties’ religious convictions, particularly whether difference cultural considerations apply to the children as a consequence of their different sexes.
Ms Cartwright deposed that this was not the case. However, the evidence does indicate that there are subtle distinctions made between X and Y, particularly in Mr Cartwright’s home. Certainly, this was the impression of Dr A at the observed interaction.

h) Aboriginality

This is not a relevant consideration in this case.

i) The attitude that each parent has demonstrated to the responsibilities of being a parent

I think both parents aspire to being the best possible parents they can be. One of the important duties of a parent is to encourage and support an appropriate level of relationship between the children concerned and the other parent.
Mr Cartwright is critical of the mother in this regard asserting that from August 2011 onwards, Ms Cartwright ignored the orders of the court which required her to make both X and Y available to spend time with him.
There is some substance to Mr Cartwright’s criticism. Ms Cartwright has indicated that she did not bring an application before the court to change the orders because she lacked the resources to do so and was daunted to make such an application on her own behalf. Again, I acknowledge that there is some moment in these submissions.
In the context of these proceedings, Ms Cartwright has indicated that she will abide by whatever order the court makes in future regarding X and Y’s care. She says that as a (religion omitted), it is her duty to love the country where she lives and obey its laws. I accept that this is her current position.
Mr Cartwright has been very critical of Ms Cartwright’s practical skills as a parent asserting that she has neglected X and Y’s hygiene and other aspects of their welfare. Apart from the father and Ms N’s assertions in this regard, there is no evidence to support Mr Cartwright’s criticisms.
The independent court experts, Ms K and Dr A, found no signs to indicate that the children were not properly parented by their mother. In addition, no concerns have been raised by any other independent authority such as X’s school or any of the medical practitioners whom she has attended in this regard.
In my assessment, Ms Cartwright is a competent and caring parent who takes proper care of the children. I accept her evidence that she continues to be the children’s major provider of care and has not abandoned parenting of the children to her own mother or anyone else since the arrival of her husband in Australia.

j) Family violence

k) Any family violence order

I do not propose repeating any of my findings regarding family violence already made in these reasons for judgment other than there has been a significant level of family violence in the parties’ marriage and the grounds on which Ms Cartwright was granted a family violence order were genuine.

l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings

Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
For these reasons, it seems to me desirable that the court should bring about in any orders made as stable a situation as possible for the children which will obviate the need for any further litigation.
The parties in this case have been in litigation with one another since early 2008. Perhaps, given the divergent views each had about the nature of their relationship, it was inevitable that there would have to be a court based determination as to whether or not family violence was a significant factor in their marriage and the consequences of this for the children, particularly X.
In October 2010, after a difficult and tortuous process, the parties were able to agree on a regime for the care of the children. Regrettably, this regime has broken down so far as X and her welfare are concerned. In these circumstances, Dr A has recommended a regime to give her some respite. I agree with Dr A that this should be the immediate focus of the court.
However, such an outcome is likely to represent unfinished business, certainly so far as Mr Cartwright is concerned. There can be no guarantee that the course of counselling, recommended by Dr A, for X, will ameliorate the relationship between X and her father in any significant way.
In addition, the essential artificiality of there being two separate and distinct regimes for the children to spend time with their father is likely to lead to pressures arising over time. In these circumstances, it seems inevitable that Mr Cartwright will want to revisit the orders at some stage in the future and will therefore request some further assessment of X and her level of emotional functioning.
Given the toll, both emotional and financial which the proceedings have had for both the mother and father and the pressures implicit in them for X, it does not seem to me to be useful to adjourn the proceedings for any lengthy period of time in order to see how X progresses.
In addition, at present Y is currently a little over six years of age. Mr Cartwright aspires to Y spending equal periods of time with him during school holiday periods. In theory, Ms Cartwright is not adverse to such an outcome but wishes it to happen gradually over time. Disagreement about arrangements for Y’s care may also bring the parties back to court.

Conclusions

Given the finding of family violence resulting in abuse having been sustained to X, the presumption of equal shared parental responsibility is rebutted in this case. Accordingly, the court is not mandated to consider either equal time or substantial and significant time.
This is a sad and perplexing case for many reasons. Firstly and most obviously because of the finding of serious family violence. Secondly, because the proceedings have been on foot for so long and have been characterised by such significant conflict.
Thirdly, because it is my perception that there is a marked cultural disconnect between the parties, on the one hand, and the court’s processes and the legislation it must apply on the other which is particularly pronounced in the case of Mr Cartwright.
Mr Cartwright’s attitude towards Ms Cartwright is one of condescension. He sees himself as the natural head of his family and necessarily its prime decision maker. In such circumstances, it is likely to be deeply galling to him that parental responsibility for X and Y is conferred exclusively on Ms Cartwright.
However, given the endemic conflict between the parties and their almost totally compromised facility to communicate effectively, it is likely to be close to impossible for the parties to agree on any significant issue to do with the children. Inevitably, such matters are likely to become a power struggle between the parties.
The other side of this issue is that Mr Cartwright cannot be described as a disinterested parent or one who has either actively or passively abrogated his responsibility for either X or Y. Like Ms Cartwright, he is deeply interested in every aspect of the children’s care and welfare, particularly matters to do with religious observances and education.
In addition, in the public aspects of his life, particularly in the context of his community and religious responsibilities, Mr Cartwright is likely to want to emphasise his responsibility for and connection with both X and Y.
Although I have not been provided with evidence in respect of the issue, I suspect also that it would be viewed as culturally inappropriate for Mr Cartwright to be excluded from having parental responsibility for his children in the religious domain.
Prior to the final orders of October 2010, there was a dispute between the parties about some aspect of X’s religious instruction. I was reluctant to intervene in this issue and hoped that the parties’ community would be able to mediate the matter. I suspect that there will be other similar issues arising in respect of Y. I am troubled that it may be culturally insensitive for Ms Cartwright to have responsibility for deciding such matters.
Having I hope, closely considered this difficult issue, I have come to the conclusion that it would not be in the best interest of X and Y that parental responsibility for major long term issues relating to cultural, religious and educational matters, to be conferred on only Ms Cartwright.
In these circumstances, I will make an order that the parties each retain parental responsibility for the children in respect of these crucial issues in accordance with section 61C of the Act. In particular, I will order that each party retain responsibility for making decisions regarding the children’s religious and cultural upbringing.
I appreciate that in the event the parties are unable to reach a compromise about such issues, it will fall to the court to determine any outstanding disputes. I think this outcome is preferable to Mr Cartwright being excluded from having religious and educational responsibility for the children.
However, given the obvious deficits in the parties’ capacity to communicate with one another, I consider that Ms Cartwright should have parental responsibility for issues to do with the children’s health and ancillary matters. I am satisfied that I have the power to make this idiosyncratic parenting order as a consequence of the provisions contained in section 65D(1) of the Act.
The major aspect of this case concerns X and what time she should spend with her father given the difficulties which she is currently experiencing. The court’s focus must be on supporting X. In my view, any proper examination of her best interests dictates that the time she spends with her father should be significantly reduced at this stage.
Accordingly, I propose to adopt the submissions of the independent children’s lawyer in respect of future arrangements for X to spend time with her father. I appreciate that Mr Cartwright will be very disappointed at this decision. However, given the psychological vulnerability of X, it seems clear that she needs respite from the stresses to which she has been subject.
It is not appropriate that X, given her tender years should be placed in the position of deciding whether she will or will not spend time with her father. At present, such an order would be tantamount to the child spending no time whatsoever with the father.
There must be some thread, no matter how slender, between father and daughter in the expectation that the relationship can be ameliorated in time and in the hope that X will emulate Y and begin to spend more time with the father.
Y is a more robust child who seems to occupy a different role in his father’s household. However, in my view it would be contrary to his best interests for the court now to embark upon a radical extension of his time with his father, particularly given that arrangements for X have taken a contrary direction.
In all these circumstances, I do not propose to revisit the arrangements of (religion omitted) and (religion omitted), upon which the parties agreed in October 2010. I do not think it would be helpful to the children for there to be radically different arrangements for them at these significant occasions.
However, there is much to recommend in Mr Cartwright’s aspiration to be able to spend extended periods of time with Y during school holiday periods. Neither Ms Cartwright nor the independent children’s lawyer have fleshed out any particular proposal in this regard other than that it should be gradual and focussed on Y’s tender years.
I propose that Y should start to spend three consecutive days with his father during the remainder of the short holidays arising in the 2013 school year, which should increase to four days in 2014 and five days in 2015 in each such holiday. There should also be two such periods in each end of year school holiday, increasing in the same pattern. Otherwise I do not propose to make any further changes to the October 2010 orders.
I will retain the arrangement for handover and ancillary matters which were put in place following the breakdown of the October 2010 orders. The mother is entitled to the safety provided by a police station. Regrettably, the re-introduction of a communication book appears pointless. I will continue the other significant orders agreed upon by the parties in October 2010.
I have considered whether there should be some lengthy adjournment of the proceedings to see if things can be ameliorated for X through any course of counselling which she undertakes. I have decided that such an adjournment would be contrary to her best interests.
It is desirable that these proceedings be finalised now. However, such a finalisation cannot be considered an automatic bar to Mr Cartwright bringing further proceedings at some stage in the future in respect of X in particular.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding four hundred and forty four (444) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 25 September 2013

[2013] FCCA 1453

25 September 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Procedural Fairness