Chalmers and Ting (No 2)

FAMILY COURT OF AUSTRALIA

CHALMERS & TING (NO. 2)

[2017] FamCA 744

FAMILY LAW – CHILDREN – Parental responsibility – Consideration of whether the Court should depart from the presumption of equal shared parental responsibility – Where parties are unable to agree regarding the children’s health – Where the parties have varied approaches to parenting – Where it is in the best interest of the child for the mother to have sole parental responsibility.

FAMILY LAW – CHILDREN – Spend time with – Where children live with father and spend regular time with mother – Where children previously lived with mother – Where children would benefit from a relationship with both parents – Where both parents seeks primary care orders – Where the Court finds it is appropriate for the children to live with the mother and spend 5 nights a fortnight with the father.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 69ZN, 69ZQ, 69ZR, 69ZT, 69ZV
Family Law Rules 2004 (Cth) r 15.13

Mazorski & Albright [2007] 37 FamLR 518

APPLICANT:

Ms Chalmers

RESPONDENT:

Mr Ting

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commissioner of SA

FILE NUMBER:

ADC

914

2010

DATE DELIVERED:

22 September 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tredrea

SOLICITOR FOR THE APPLICANT:

Black & Wood Divorce & Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mrs Read

SOLICITOR FOR THE RESPONDENT:

Adelaide Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Seymour

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commissioner of SA

Orders

That the mother have sole parental responsibility for X born … 2005, Z born … 2006 and Y born … 2008 (“the children”).
That the children live with the mother.
That the children spend time with the father as follows:-
(a)On each alternate weekend from the conclusion of school (or 3 pm if a non-school day) on Thursday until the commencement of school (or 3 pm if a non-school day) the following Tuesday;
(b)For one half of each short school holiday period on dates to be agreed upon by the parties but in default of agreement the children shall spend time with the father during the first half of each short holiday period;
(c)For one half of the December/January holiday period on dates to be agreed upon by the parties but in default of agreement the children shall spend time with the father during the first week of the holiday period and each alternate week thereafter;
(d)From 3 pm on 24 December 2017 until 3 pm on 25 December 2017 and each alternate year thereafter;
(e)From 3 pm on 25 December 2018 until 3 pm on 26 December 2018 and each alternate year thereafter;
(f)From 9 am to 5 pm on Father’s Day PROVIDED THAT the father’s time to be suspended between 9 am and 5 pm on Mother’s Day;
(g) In the event that Easter falls outside the April school holiday period;
(i)From the conclusion of school on Maundy Thursday until 3 pm on Easter Saturday in the year 2018 and each alternate year thereafter PROVIDED THAT the children remain in the care of the mother from 3 pm on Easter Saturday until the commencement of school the following Tuesday in the year 2018 and each alternate year thereafter;
(ii)From 3 pm on Easter Saturday until the commencement of school the following Tuesday in the year 2019 and each alternate year thereafter PROVIDED THAT the children remain in the care of the mother from the conclusion of school on Maundy Thursday until 3 pm on Easter Saturday in the year 2019 and each alternate year thereafter.
(h) Such further or other times as the parties may agree.
That all handovers that do not occur at the children’s school take place inside the Town E Police Station or at such other place as the parties may agree.
That each of the parties is to notify the other as soon as is reasonably practicable in the event of a medical emergency or serious illness affecting the said children or any of them during any time that the children are in his or her care.
That each of the parties shall keep the other informed of the identities and contact details of the children’s current treating medical and allied health practitioners.
That each of the parties is hereby authorised to obtain any information from the said children’s treating medical or allied health practitioners as may be requested by them including but not limited to information as to the said children’s diagnosis, prognosis and/or treatment.
That each of the parties is hereby authorised to receive from the children’s school at their own expense copies of the children’s school reports, school photographs, newsletters or other material or information in relation to the said children’s progress as he or she may request from time to time.
That each of the parties is hereby authorised to attend all school functions, school and extra-curricular performances, parent and teacher interviews and other events to which parents are ordinarily invited.
That the parties are restrained and injunctions granted restraining each of them from physically disciplining the children or causing or permitting any other person to do so.
That the appointment of the Independent Children’s Lawyer is discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chalmers & Ting (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 914 of 2010

Ms Chalmers

Applicant

And

Mr Ting

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Final orders with respect to parenting matters were made by consent on 15 July 2011 (as amended 1 August 2011) between Ms Chalmers (“the mother”) and Mr Ting (“the father”) for the children X born in 2005, Z born in 2006 and Y born in 2008 (collectively, “the children”).
That order provided that the parties have equal shared parental responsibility, the children live with the mother and spend time with the father each alternate week from after school Thursday until the commencement of school the following Wednesday and in each alternate week during school holidays.
By Amended Initiating Application filed 23 May 2017 the mother seeks sole parental responsibility, that the children live with her and spend time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday and on a week about basis during school holiday periods.
The father by his Amended Response filed 10 July 2017 seeks that he have sole parental responsibility, that the children live with him and spend time with the mother each alternate weekend and half school holidays. He further seeks that the mother undertakes a Mental Health Care Plan with her general practitioner and an anger management course.
The Independent Children’s Lawyer (“ICL”) was reappointed by orders made 7 October 2014.
The final hearing commenced on 17 July 2017. Both parties and the ICL were represented by experienced counsel.
At the time of final hearing, the children lived with the father and spent approximately 12 hours per fortnight with the mother.

DOCUMENTS RELIED UPON

The mother relies upon the following documents:-
(1)Amended Initiating Application filed 23 May 2017;
(2)Trial Affidavit filed 23 May 2017;
(3)Affidavits of Ms G filed on 18 February 2015;
The father relies upon the following documents:-
(1)Amended Response filed 10 July 2017;
(2)Trial Affidavit filed 10 July 2017;
(3)Affidavit of Ms M filed 10 July 2017;
(4)Affidavit of the father filed 8 September 2014;
(5)Affidavit of the father filed 20 March 2015;
The ICL relies upon the following documents:-
(1)Family Report of Dr C dated 8 January 2015;
(2)Family Report of Dr C dated 6 March 2017.
The Court was also assisted by an Outline of Case document filed by counsel for each of the parties.

CHRONOLOGY

1970

Father born

1972

Mother born

1996

Mr P born (mother’s child from a previous relationship)

August 2000

Parties meet

August 2003

Mother separates from previous partner

Late 2003

Parties commence relationship

2005

Parties reside at F Street, Town S

27 July 2005

X born

20 September 2006

Z born

25 June 2008

Y born

September 2009

Parties separate

12 March 2010

Father commences proceedings in the Federal Circuit Court (formerly the Federal Magistrates Court)

July 2010

Father commences a relationship with Ms D

2011

Z commences attending upon a CAMHS psychologist

15 July 2011

Parties reach parenting arrangement by consent, minute of order produced

2012

Z commences school at N School, Town E

February 2012

Father relocates from Town W to Town E

April 2012

Father ceases employment

2012

Father’s child B born

June 2012 – July 2013

Mother commences employment at J Services as a casual worker

July 2013

Father separates from Ms D

November 2013

Father commences relationship with Ms O

30 May 2014

Mother recommences proceedings

July 2014

Dr H prescribes ADHD medication for Z

2015

Father separates from Ms O

2015

Z attends school from 8.30 am until 11.30 am each day

8 January 2015

Dr C produces the first family report

17 October 2015

Father commences relationship with Ms M

March 2016

Z ceases consultations with CAMHS

20 March 2016

Mother observed to have “smacked” Z across the head. Incident reported to Families SA

24 March 2016

Mother charged with aggravated assault against Z. Bail conditions include no contact with Z and supervised contact with other two children

26 March 2016

Father advised of charges against mother

4 May 2016

Mother’s bail agreement as varied; no requirement for supervision with other two children, no contact with Z

15 June 2016

Orders for children to live with father and for X and Y to spend two occasions per week with the mother

29 August 2016

Mother charged with aggravated assault against Y

8 November 2016

Mother’s bail agreement as varied; mother to spend time with Y as permitted under an order of the Family Court

10 November 2016

Mother’s time with Y recommences

6 December 2016

Mother’s charges of assault against Y withdrawn by Prosecution as no case to answer

9 May 2017

Mother’s charges of assault against Z withdrawn by Prosecution as no evidenced tendered

22 May 2017

Department for Child Protection report that inappropriate sexual behaviour occurred between Z and B

BACKGROUND

The father was born in 1970 and was 47 years of age at the time of trial. The mother was born in 1972 and was 45 years of age at the time of trial. Both parties list their usual occupation as home duties and reside in the Town E area.
The parties met in August 2000 and commenced a relationship in late 2003. The parties commenced living together in 2005. They separated in September 2009.
The mother has an adult child from a previous relationship, Mr P born in 1996. She is estranged from that child.
The father also has another child from a subsequent relationship, B born in 2012.
The parties agreed to orders by consent on 15 July 2011 that they have equal shared parental responsibility, the children live with the father from after school Thursday until the commencement of school the following Wednesday and at all other times with the mother.
Following the consent orders their relationship deteriorated in or about 2013. The mother was mistrustful of the father and says that his conduct towards her was controlling and demanding.
The mother recommenced proceedings on 30 May 2014 in the Federal Circuit Court. The proceedings were transferred to the Family Court of Australia on 17 April 2015. Those orders varied the parties consent orders such that the children lived with the mother from the conclusion of school on Monday until the commencement of school the following Tuesday and with the father from the commencement of school Tuesday until the commencement of school the following Monday.
Both parties recognise that Z has learning and behavioural difficulties. A CAMHS counsellor considered that the child has developed Post-Traumatic Stress Disorder as a result of the parties’ relationship breakdown.
The child commenced primary school in 2012 on a graduated basis attending school each day until 11 am until the school decided he was capable of completing a full day.
In 2014, the child was suspended from school due to anti-social behaviour including taking a knife to school. On 3 April 2014, the mother consulted with a medical practitioner to arrange a Mental Health Care Plan for Z. The child was referred to Dr H, a paediatrician who recommended the treatment of Ritalin medication for Attention Deficit Hyperactivity Disorder (ADHD).
Following the recommendation of the practitioner, the mother engaged with the child’s social worker at CAMHS, Mr K as well as his general practitioner, Dr Q, Occupational Therapist, Ms L and support staff at the child’s school. All parties were supportive of the child trialling the medication.
Although a script was drawn and the mother obtained the Ritalin medication for Z early in 2015, at the date of trial the child had not undertaken a consistent course of medication given the father’s historical opposition to the treatment.
During the assessment for the second family report it was the father’s position that following extensive research he is now supportive of the child trialling the medication. The child is not currently undertaking a course of medication although the father says it has been trialled on the child with no effect.
The father effectively home schools Z. The child attends primary school on Monday, Tuesday and Thursday from the commencement of school until 11 am and that time is extended until 1 pm on Wednesday and Friday. He is currently completing year 5.
On 15 June 2016 orders provided for the three children to live with the father and for X and Y to spend time with the mother:-
(1)between 4.30 pm and 7.30 pm each Thursday;
(2)between 10 am and 6 pm each alternate Saturday commencing 18 June 2016;
(3)between 10 am and 6 pm each alternate Sunday commencing 26 June 2016;
The orders did not provide for time between the mother and Z following an incident report to Families SA that on 20 March 2016 the mother “smacked” him across the head at a shopping centre. The mother was charged with aggravated assault and released on bail upon the condition that she would have no contact with Z. Her time with the other children was supervised. The requirement of supervision was removed on 4 May 2016.
The mother was subsequently charged on 29 August 2016 with aggravated assault against Y with respect to an incident that occurred on 8 March 2016 whereby the mother allegedly hit the child with a broom. The bail agreement was subsequently amended on 8 November 2016 to provide that the mother’s time with Y should recommence in accordance with an order of this Court. That occurred on 10 November 2016 when X and Y spent time with the mother.
The charges against the mother with respect to Y and Z were withdrawn prior to trial. With respect to Y, the charges were withdrawn on 6 December 2016 by the Prosecution on the basis of no case to answer. The charges in relation to Z were withdrawn on 9 May 2017 with no evidence tendered.
Prior to the disposal of the mother’s charges in respect of Z, the father only permitted the mother to spend time with all three of the children on Christmas Day 2016 supervised by Ms D. At that time Z had not spent time with his mother since March 2016.
Following the conclusion of the criminal proceedings interim orders were made on 17 March 2017 that provided for the children to live with the father and spend time with the mother:-
(1)Between 4.30 pm and 7.30 pm each Thursday;
(2)Between 10 am and 6 pm each alternate Saturday commencing 18 March 2017;
(3)Between 10 am Saturday and 6 pm Sunday commencing 25 March 2017 and each alternate weekend thereafter.
The children currently live with the father.
The mother is not currently in a relationship. The father has been in a relationship with Ms M since October 2015. She has two children aged 16 and 19 years. Ms M spends regular and substantial time with her children. The father and Ms M do not live together although she and the father sometimes spend nights at each other’s residence. When this occurs the children each have a bed at her residence.
Orders provided for Dr C (“the family consultant”) to prepare two family reports in this matter which occurred on 8 January 2015 (“the first family report”) and on 6 March 2017 (“the second family report”).

ORDERS SOUGHT

The mother seeks orders as set out in her Amended Initiating Application filed 23 May 2017. They provide for her to have sole parental responsibility for the children, that they live with her and spend time with the father each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday. The children are to spend time with the father during school holidays and on other special occasions.
The father seeks orders as set out in his Amended Response filed 10 July 2017.
He seeks that he have sole parental responsibility for the children and that they spend each alternate weekend with the mother from the conclusion of school on Friday until the commencement of school on Monday.
He also promotes that the children spend half of each short school holiday period with each of the parties and in the absence of agreement during the December/January school holidays the default position is that the children spend alternating weeks with the parties.
The father also requires the mother obtain a Mental Health Care Plan that would enable her to undertake anger management therapy to “allow her to adequately control her emotions and anger”.
The parties are to exchange information in respect of the children, in particular in relation to any medical treatment and other issues that impact upon their care.

TREATMENT OF EVIDENCE

The proceedings were conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and in determining and giving effect to the principles as set out therein I advised the parties of the general duties and powers as set out in s 69ZQ and the ability that I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR.
The parties were both represented by experienced counsel.
Both counsel considered the treatment of any objections to evidence and in particular whether the Court should dispense with the application of s 69ZT. The joint position of counsel was that the Court should not apply the provisions of the Evidence Act 1995 (Cth) as are specifically excluded by s 69ZT but rather, that evidence that may be received which in the ordinary course would otherwise be inadmissible will be subject to a consideration of the weight that should be given to the evidence rather than its exclusion.
Notwithstanding the provisions of s 69ZT, I am entitled pursuant to rule 15.13 of the Family Law Rules 2004 (Cth) (“the rules”) to strike out evidence if I consider it to be scandalous, irrelevant or unnecessary.

ISSUES FOR DETERMINATION

The mother’s counsel argues that both she and the father have “failed abjectly in respect to their exercise of parental responsibility of the children…”.
In making the consent orders on 15 July 2011 the parties ignored the reality of their relationship namely, that they were unable to work together and any suggestion of a shared care arrangement would likely have an adverse impact upon the children. The mother considers that the parties have little common ground and there is nothing to suggest that their relationship and accordingly their ability to work cooperatively for the benefit of the children will improve into the future.
Reference is made in both family reports that both parties appear to have influenced the children’s views. The mother agrees with that proposition. Moreover, she does not dispute an assessment by Families SA that the “ongoing conflict and acrimonious dispute” may well constitute emotional abuse.
Notwithstanding those concessions, the gravamen of the mother’s application is that historically she had been the children’s primary carer and but for the false allegation of physical violence made against her, there would be no basis for the Court to have interfered with the children’s living arrangements.
A consideration of the objective evidence as to the development and progress of the children whilst in the primary care of the father would invite a pessimistic consideration.
The children’s presentation, behaviour and academic advancement have all been compromised and certainly not advanced during the period that they have been in the care of the father since March 2016. The mother concedes that Z’s school performance is dysfunctional and Y’s academic performance has regressed.
The mother rejects any assertion that she poses a risk to the children and in circumstances where the principal allegation of assault against the children has not been made out and is without foundation, the Court should readily consider that they should return to her primary care.
The father focusses on the inability of the mother to control her anger, specifically her “explosive anger reactivity directed towards the children and the father”.
The mother has not obtained counselling and he considers that the children are the subject of “emotional manipulation”.
Whilst the father acknowledges that there is affection, attachment and warm interaction between the mother and the children as observed in the course of the family assessments, if placed in her primary care they are at risk of:-
(1)physical abuse;
(2)emotional manipulation against the father and emotional abuse;
(3)a potential to restrict or diminish the relationship with their father;
(4)Z being medicated with drugs without good reason.

THE EVIDENCE

THE MOTHER

The mother relies upon her Affidavit filed 23 May 2017. Leave was given to the mother to adduce further evidence. Her counsel tendered the following documents:-
(1)Families SA notes from February to May 2014;
(2)CAMHS session notes from August 2011 to July 2014;
(3)Families SA case notes dated 15 September 2015.
She was asked to set out the extent of her knowledge of the extra-curricular activities that Z and X are engaged in. She stated that the children do not tell her much about their activities, in particular relating to their attendance and involvement at school, their volunteer involvement with a community service and X’s dance.
There is no information that passes between the parties about the children’s activities, although of recent date the father did give a letter to X to inform the mother of her dance competition.
The mother recounted the circumstances surrounding the family dog being euthanized in June 2017. The children were present when the dog was destroyed. It coincided with a family celebration for Y’s birthday.
The dog had apparently been demonstrably unwell for some considerable period of time. X became concerned at the dog’s state of health and secretly contacted the father by text message to advise him of her concerns. It appears that the father called the police. They attended and their concern was such that an animal protection organisation was called and a determination was made that the dog should be put down.
X was apparently concerned that her mother would be angry with her for contacting the father. It was not the child’s intention that the father would call the police in what the mother agreed was a traumatic event for the children.
The mother’s evidence was that she did not reprimand the child.
The mother was asked to reflect upon the final order made by consent on 15 July 2011. That order provided for the parties to have joint shared parental responsibility for the children and for their care to be shared between them. The notations to the order is important:-
Upon noting the mother no longer asserts the father raped her during the relationship.
Upon noting the outcome of the abuse allegations made by the mother in October 2010 and May 2011 were unfounded.
Upon noting Families SA were concerned about the parenting of the children hereby coached in relation to the abuse allegations.
Upon noting the mother will seek a referral by her General Practitioner for a Mental Health Care Plan and inform the father of any treatment required to be undertaken by her.
Upon noting the mother will seek counselling to assist her to promote a relationship between the father and the children.
While the mother agreed that she had given her consent to the orders, she would not concede that the notations were an accurate reflection of the situation. She argues that she was a self-represented litigant, that the matter had proceeded for some days and that after a discussion with counsel for the ICL she felt under some compulsion to enter into the orders even though she did not agree that the notations were accurate.
She considered that she either had to settle the proceedings and in doing so agree to the notations as promoted or risk the potential to lose the children.
She was asked to consider paragraph 16 of the orders which were directed to the mother’s counselling and the provision of Court documents to her health professionals to assist in better understanding the mother’s presentation.
The orders were in part predicated on the mother obtaining assistance to promote a relationship between the children and their father.
It was put to her that the focus of her attendance upon a psychologist was not to assist in promoting a better parental relationship but rather, to lend support to the mother’s position that she had been compelled to enter into the consent orders. The report of the psychologist appears as annexure “FMS-6” to an affidavit of the mother’s former solicitor Ms G filed 18 February 2015.
I find the mother’s evidence unconvincing. She presented no evidence to support the contention that unless she entered into the order there was a risk that the children would be prevented from living with her.
I find that the notations to the order are accurate and representative of the true circumstances that existed at that time.
There is some issue raised between the parties as to the state of Z’s health and whether he should be prescribed Ritalin medication.
The mother’s evidence is that the child has a mild intellectual disability, suffers from Post-Traumatic Stress Disorder (PTSD), Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD) and as a result has dysregulated behaviour.
Whilst the mother opines as to how the child’s behavioural issues are connected to the alleged conduct of each of the parties, the more critical issue is how his behaviour now manifests itself. The mother considers that he is “highly reactive” when confronted by challenging situations.
She asserts that up until the child’s removal from her in March 2016 she had been primarily responsible for his behavioural management and engagement with health professionals together with the implementation of treatments as prescribed or recommended.
She refers to CAMHS records which set out the extent of her involvement and provides a history of treatment.
An summary of the child’s challenging behaviour is set out at paragraph 248 of the mother’s trial affidavit:-
Since [Z] started school he has often (sic) in trouble for behavioural issues. [Z] is prone to use bad language, throw things, bite and hit people including teachers and students as school. He has been caught stealing on many occasions.
In July 2014 the paediatrician, advised that Ritalin medication may assist in the treatment of the child’s ADHD.
The mother’s evidence is that the child’s general practitioner supported the treatment recommendation by the paediatrician and a management and treatment plan was put in place following consultation with staff at the child’s school and a social worker at CAMHS.
The father refused to allow the medication to be administered to the child and various attempts at reaching a mediated resolution were unsuccessful. The child’s behaviour has not ameliorated and his continued fulltime attendance at school had become untenable.
The parties remain in dispute as to whether the child should be prescribed medication to lessen the symptoms of ADHD.
The mother did not call expert evidence in respect of the child’s condition and neither party seeks an order in relation to any specific treatment in respect of the children, but in particular Z.
The issue is not necessarily focussed on whether medication is required for the child but rather the inability of the parties to reach any agreement in relation to medical treatment.
The argument is reflected in the orders that each of the parties seek that they have sole parental responsibility.
The mother’s evidence is that she considers Z should receive medication, but she recognises she and the father will never be able to reach agreement on that topic.
The mother considered that Z had transitioned well at school in 2012. The difficulty now is that Z’s conduct is challenging and his attendance at school is limited.
The father had formed a relationship with Ms D. The mother agreed that she had made a complaint to the police about aggressive conduct that had occurred between the father and Ms O which had caused the child B to be knocked to the ground.
The import of cross examination was to demonstrate that the mother was prepared to make false or unnecessary notifications to the relevant child protection authority in order to create mischief for the father.
The mother also agreed that she made a complaint about the children’s school principal. Whilst the mother purports not to remember what the complaint was about, it was obvious that she perceived the school staff to provide some assistance and support in favour of the father.
I do not accept that the mother was not able to remember the substance of the complaint and consider her apparent inability to remember the details and circumstances surrounding the complaint as evasive.
The mother was asked to consider correspondence from Families SA dated 11 April 2016 which provides a detailed summary of the child protection issues pertaining to the family and the parties.
The following appears as a summary of the history of child protection involvement:-
There are over 60 notifications recorded on the Families SA database for this family. The reported concerns have primarily related to the children being exposed to domestic violence, and include; the children showing signs of emotional neglect as a result of the ongoing conflict by the parents; allegations that the mother slapped X and grabbed [Z] by the neck and threw him to the floor; allegations of domestic violence between the father and his partner; and allegations that the mother was punishing the children for “lying” to Families SA in a recent investigation. Families SA have investigated a number of concerns and substantiated 11 cases with the responsibility of harm being attributed evenly to both parents.
The report also provides the preliminary investigation of a notification alleging that the mother had assaulted Z by hitting him across the head with force. The alleged assault was observed to have occurred in a shopping centre.
The details of the alleged assault were recorded in the following terms:-
On Sunday 20 March 2016 a notifier reported to Families SA Child Abuse Report Line that the mother was observed to smack her son [Z] across the side of the head with force (a loud crack slapping sound was heard). The mother yelled at [Z] “shut up”. [Z] was visibly upset and appeared physically hurt holding his head in his hand. [Z] was then observed to walk up behind the mother with his fists up and motioning to punch her in the back of the head several times…
The mother was arrested and charged with assault and the children were placed in the father’s care.
The report records that the mother did not admit that the alleged assault or that an incident had occurred and it would seem that her presentation was understood by Families SA to be a refusal to work with the department.
The mother agreed that Families SA had expressed their concern at her ability to care for and cope with the children. She acknowledged that she was again approached by Families SA following an incident involving Z taking a knife to school after the Easter break.
The mother conceded that the conduct of the parties was such that it was open to Families SA to consider that their separate ability to care for the children was dysfunctional.
On 6 April 2014 Z ran away from the mother’s home. The mother acknowledged that she was punishing the child for his poor conduct and had locked him out of the house. The child ran away to the father’s home. The police were called and the child was returned to her care. She agreed that she had not advised the father of the circumstances of Z running away.
The mother accepts that she made various allegations to Families SA in respect of the father providing inadequate clothing for the children, that there were issues in respect of excessive discipline and that he refused to return school uniforms at the handover time.
The mother was challenged as to the veracity of the allegations made by her and the clear conclusion that can be drawn from her evidence is that they were either without foundation or were deliberately exaggerated with the intention that Families SA would focus on the father’s parenting capacity.
At paragraphs 102 to 108 of the father’s trial affidavit he alleges that the mother would physically discipline the children and on occasions would hit them with a wooden spoon.
He alleges that on 7 April 2015 the mother punched Z in the face, on 8 March 2016 she hit him over the head with her hand to make him behave and struck Y on the head with a broom handle.
When told of the alleged incident, the father inspected Y’s head but found no mark or bruise.
A further incident was disclosed by Z that on 22 March 2016 the mother grabbed the child by the back of the neck and pushed him to his bedroom following her discovery that the children had been “mucking around”.
The father then became aware of the alleged assault on Z by the mother in the supermarket when he was spoken to by Families SA following the mother’s arrest and the other alleged assaults were conveyed to the Department.
The mother denied ever hitting Z or Y. She specifically denies the allegations made by the father and when referring to the alleged supermarket assault on 20 March 2016, the mother was unequivocal in her response. As far as the mother is concerned it is not a matter of nuance. She denies that any incident occurred at all. When asked why the alleged witness would make up a story, she considered that the witness may have been biased in favour of the father given her involvement in the investigation of the complaint that the mother had made alleging that in an altercation between the father and his former partner Ms D when her daughter was knocked to the ground.
The mother agrees that she made the notification but now accepts that it was false.
The consistent position of the mother is that she totally rejects that any incident occurred involving her hitting Z on 20 March 2016. In those circumstances the father clearly understood the mother’s position leading up to trial.
Apparently the witness was not called because she was unavailable at short notice. Notwithstanding the long history of litigation and the extensive consideration given to trial directions and the preparation and filing of affidavit material, it was only on the first morning of trial that the potential for a subpoena to issue directing Ms R to attend Court was raised. Upon enquiry, the father’s counsel conceded that the potential witness had not been placed on notice and there was uncertainty as to whether she could be found or would respond to the subpoena at short notice or at all.
I refused the application for a subpoena and gave reasons. No other evidence was called in respect of the alleged assault. The issue was raised only in respect of the father allegedly being told by X that he had been hit by his mother.
Whilst the child’s evidence is admissible pursuant to s 69ZT and in any event s 69ZV of the Act, in the circumstances of this case I place little weight on what the child may have said to the father. Paragraph 108 of the father’s trial affidavit does not attribute his understanding of what occurred to Z but rather from other unidentified sources, but possibly Families SA and/or the police.
No evidence was led of the police investigation, record of interview conducted either by the police or Families SA in respect of what allegedly occurred.
The mother agrees that she has been under some scrutiny and supervision by Families SA in the past for anger management issues.
At paragraphs 116 to 123 the father sets out his understanding of the disturbing circumstances surrounding the family dog being put down.
The mother agreed that she knew of the dog’s poor health and when asked what steps she had taken to alleviate and/or explore the dog’s obvious suffering, her response was to the effect that little or nothing had been done.
It is likely that the suite of options available to the mother were significantly limited by her poor financial circumstance. Nonetheless, the incident was distressing and showed a lack of responsibility that was confronting. Each of the children present at Y’s birthday were significantly affected by their observations of the animal’s poor health and suffering and the resultant trauma arising from the attendance by police and then a vet who considered that dog should be euthanized.
The mother agreed that there were two occasions in 2013 when Z ran away from home and on the third occasion with his brother Y.
It was put to the mother that the children were scared of her. The mother’s response was that she considered their actions had been encouraged by the father.
Whilst it is not possible to make a finding on the evidence as to the motivation for Z and Y to run away from their mother’s home, the conduct and behaviour of each of the parties lends some considerable credence to the view expressed by Families SA that the parties present as an emotional risk to the children. With some reluctance the mother conceded that there may be substance in that assertion.
A curious aspect to the proceedings is the mother’s relationship with Ms D who had been a former partner of the father. The mother considers that Ms D is now a friend. In February 2011 the mother made a notification alleging that X had been the subject of sexual assault by Ms D in that she had touched X in the area of the child’s breast and in respect of both Z and X in the area of their groin.
She agreed that there had been a full investigation and that an ICL had been involved. Both the father and Ms D had been the subject of formal interview.
Following the investigation the mother was told that Ms D was out of the state at all material times. Accordingly, assuming that the mother’s source of information was the children, the only explanation is that they had concocted the story.

The mother accepted that neither child had provided any detail and the information given to Families SA by the mother was scant. A further possibility arose namely, that the mother had concocted the entire incident.
Taken on its own, it may be considered an isolated error of judgement by the mother or inexplicable conduct by the children, but the father incorporates the incident in his case as part of a pattern of behaviour by the mother to make false allegation and empty notifications against him.
Under cross examination by counsel for the ICL the mother was asked to set out her strategy and techniques for dealing with the children’s behaviour, in particular Z and Y.
The mother gave a credible response that when Z is dysregulated, she ensures that he has quiet time away from the other children until he calms down. When he is angry, aggressive and violent, her strategy was to hold the child closely and provide comfort and reassurance. She speaks calmly to the child and considers that her management of the child’s behaviour is such that she presents as a calming influence.
She agreed however that at times Z is difficult to control with behaviour that is both confronting and troubling.
The mother was aware that the child had punched and kicked the family dog and on one occasion was observed to be hitting the pet lizard. Whilst the mother tried to explain to Z that his conduct was not appropriate, she agreed that he was not very responsive to any entreaty by her.
The mother’s evidence on the activities that she engaged in with the children since orders were made that enabled Z to spend time with the mother was impressive. The routine in the mother’s household involved the children getting out of bed at about 8 am, having breakfast and getting dressed ready for school. The children are usually in bed by 8 to 9 pm at night and she considers their behaviour generally to be good.
In the first report by the family consultant, a complaint of the father is recorded highlighting that he has been called to school because the children have not been in proper school uniform. The mother’s response was to agree that the children’s uniform may not be complete, but she was reluctant to send the children to school in full uniform for fear that the father would retain their clothing and not return it to her.
The mother was asked to consider the text messages forwarded by the father between 29 July 2014 and 10 August 2015. The messages were generally enquiries by the father as to circumstances affecting the children. The father requested that X’s dance clothes be packed. He then enquired why the children were not at school on 29 July 2014, sought an opportunity to speak to the mother about Z and in particular issues in respect of the proposed treatment plan by the paediatrician that Z should be prescribed medication.
There appears to have been no response by the mother to any of the father’s entreaties. The mother’s first response was that she was unsure whether she had or had not responded. With some suggestion of a conversation with the father in respect of Y’s asthma and his treatment and management, she conceded that she did not reply to any of the text messages.
She further conceded that when the children were in the father’s care, notwithstanding that she was prevented from seeing them, there were nonetheless 18 occasions when she could have spoken to the children.
The mother was questioned as to her response to the family consultant as recorded at paragraphs 14 and 15 of the second family report.
The mother reported to the family consultant that there was closed circuit television (“CCTV”) footage of her that coincided with the time of the alleged assault of Z on 20 March 2016. The mother had seen the CCTV footage and denied that it showed her hitting or striking Z.
It was her further evidence that the CCTV footage did not show the presence of the witness.
She did admit that Z had been difficult in the shopping centre that day and that she had put her arm out to motion the child to walk ahead of her. Whilst acknowledging Z’s difficult behaviour she strenuously denied any assault.
The video footage was not pursued by the father or the ICL.
It was put to the mother that X has an understanding that the mother considers the children are at risk in the father’s care. She accepted that X’s understanding is likely to be as a result of something that she has said to the children. When pressed, she could not remember the circumstances in which any negative or derogatory remark concerning the father was raised with the children.
I find that the mother is not able to restrain or control herself in respect of how she feels about the father. The atmosphere in the mother’s home in respect of the father is toxic and little or no effort has been invested by the mother in attempting to shield the children from the conflict.
Given the period of time that the litigation has been on foot, it is reasonable to find that almost the entirety of the children’s lives have been adversely impacted by litigation, inter-parental dispute and ongoing conflict.

THE FATHER

The father relies upon his Trial Affidavit filed 10 July 2017. The following documents were tendered by his counsel:-
(1)Speech pathology report for Y dated 26 June 2017;
(2)Semester 1 2017 school report for the three children;
(3)Psychological report by Ms T for Z dated 17 July 2017;
(4)Police Apprehension Report of incident dated 20 March 2016;
(5)Bundle of miscellaneous documents.
It was put to the father that on 26 February 2014 the children’s school principal observed the parties arguing in the presence of the children, other children and parents. The principal intervened and organised for the parents to sit with him while the school staff watched the children in the library.
The argument was apparently due to the father wanting to take X to a dance class and the mother’s opposition.
The mother was unhappy with his proposal. He acknowledged that this occurred on a day when the children were meant to be with the mother and he was in attendance at the school to pick up his then partner’s children.
The father was challenged as to his conduct and the proposition was put to him that he could have given the mother some notice about the dance class and an early request that X be able to attend.
The father did not consider that it was “a big deal” but conceded that it ended in acrimony.
Families SA notes of 28 February 2014 refer to observations made by X of the father and his then partner engaging in physical acts of aggression. The extent of the arguments was such that X was scared and when she felt unsafe she would go to a neighbour’s house.
The father did not accept that the relationship with his former partner was marred by disagreement or aggressive interaction.
Families SA were contacted by the school principal to advise that Z had been suspended for serious aggressive behaviour. The Families SA notes suggest that the father was angry about being told that he was not able to attend the school on his non-contact weeks.
He agreed that he was angry and could see no justification for him to be excluded from a long-standing practice of attendance.
The parties had agreed that the children would go to the father for Easter 2014. The arrangement was that the parties would meet at McDonald’s on Easter Sunday at 12 noon. The father stated that he received a message that the children weren’t going to go to the father as agreed. His response was that he would involve the police. The mother apparently did not react to the father’s threat.
The police and the father then attended the family event at the home of Ms D. The Court Order provided for the children to be with the father on Monday rather than on Sunday.
It was put to the father that when he attended at the mother’s address he parked behind her car. The father apparently went to the children’s car door, opened it and asked the children to get out of the mother’s car and to go into his car.
There was then an unpleasant and aggressive interaction. The mother was screaming and the father pushed her away. The children were observed by the father to be distressed and it was his evidence that the mother told Z to run away. Consistent with previous conflict, the police were called and were required to intervene.
I find that the parties’ demonstrated scant regard for the children and that their behaviour was likely to place them at significant emotional risk.
The reports of the children were that the father hit the mother. The father denies that this occurred, does not admit to taking Y out of the mother’s car, but does accept that he pushed the mother down onto the car to stop her from wrestling with him.
The father agreed that the mother did not see the children on Mother’s Day 2014. His explanation is that his motor vehicle broke down and he acknowledged that X was very upset.
He accepted the assessment of the worker as expressed in the notes that “the adults have lost sight of the children and it is about getting ‘one up’ on each other which is impacting on the children negatively”.
The father was not able to consider a way forward. There is nothing in the father’s evidence which would suggest any realistic proposal or likelihood of the parents disengaging from their damaging conduct.
The father was cross examined in respect of matters relating to Z’s medication. The father was not involved in the 2015 medication trial for the child even though he was with the father for six nights a fortnight.
He accepted that all of the doctors and health professionals involved in Z’s care .
Exhibit “7” represents the session notes and correspondence in respect of the CAMHS involvement with the care and treatment of Z. The father agreed that he had contacted the CAMHS worker on 7 November 2011 and accepted that the child had been placed on medication by a medical practitioner. The father’s position was that he wished to investigate alternatives and that “therapy/behavioural interventions were the best alternatives to medication and so it was of benefit that Z continues to attend CAMHS as well as be on medication if that was the case”. The father also accepted the contents of correspondence from Ms Clark dated 18 December 2012 corroborating the mother’s evidence of her involvement in the “Circle of Security” parenting programs and her general involvement in supporting Z’s ongoing management. The father was opposed to “pharmaceutical intervention” in respect of Z.
The correspondence also corroborates Z’s return to fulltime education after a “successful extended transition which was facilitated by his school”.
CAMHS closed their file apparently satisfied with the progress that had been achieved.
The import of cross examination was to highlight that in late 2012 Z appeared to be doing well. By 2014 concerns were raised by the child’s Year 2 class teachers about his mental health, aggressive and destructive behaviour. Correspondence from the assistant principal in support of a Mental Health Care Plan for the child sets out the issues as observed by the teaching staff:-
(1)Z requires 1:1 encouragement and support to begin and complete all tasks;
(2)Non-compliant and rude, aggressive behaviour towards adults who are supporting him (principal, deputy principal, teachers, ESO’s etc);
(3)Running away;
(4)Destruction of property at the school;
(5)Hitting, spitting and kicking adults and children;
(6)Bringing a knife into school.
The father was referred to email communication from a senior social worker at CAMHS which summarised the assessment of the health professionals involved in Z’s care in the following terms:-
The difficulties and stress that Z experiences are mainly a result of parental conflict and the poor boundaries that the parents employ re their hatred and dislike for each other. His difficulties could also be conceptualised as a Disorganised Attachment Disorder…very difficult to treat and treatments take a number of years to show any moderate level of improvement.
Correspondence from the paediatrician to the child’s general practitioner confirms that part of the child’s treatment regime to deal with his hyperactivity, lack of concentration and oppositional and aggressive behaviour was to consider medication. The mother commenced medication, the father refused his consent.
The extent of the child’s distressing behaviour is summarised by the inability of the paediatrician to undertake a medical examination of the child given his violence.
The father accepted that the paediatrician had indicated clearly that given the child’s complicated family life, medication had been promoted and had been met with the father’s refusal.
The session notes demonstrate that significant consideration had been given by health professionals, social workers and psychologists involved with Z to trial medication. The mother was prepared to accept the advice, the father was not.
By 9 July 2014 Z’s behaviour was such that he was no longer attending school and the senior social worker who had been actively involved in the child’s treatment and management was no longer prepared to work with the child because of his dysregulated state. Put simply, unless the child was able to focus, therapy and counselling could not take place.
The concluded position of the father was to accept the proposition that he has consistently refused to consider a trial of medication for Z.
The father accepted that there has been no consistency to Z’s school attendance. In early 2016 some further periods of school attendance took place, but given the child’s acute and aggressive behaviour, this was again cut back to minimal attendance. The father acknowledged that the school was not able to cope with Z attending normal hours and his behaviour was such that he was regularly suspended.
The thrust of the cross examination highlights that from March 2016 Z was in the primary care of the father and his efforts in considering alternative management options for the child’s behaviour had not been successful.
It was put to the father that the apparent regression in Z’s conduct and therefore his ability to engage in education was as a result of the chaotic state of the father’s household. The father’s retort was that any behavioural difficulties could also be considered to coincide with a resumption of the child spending time with his mother.
The father accepted that in 2016 Y’s school reports suggested he was an average student, but in 2017 his academic score reflected mostly D and E grades.
Following the mother’s arrest for assault in 2016, the father conceded that the children did not see the mother and that he took few steps to foster and maintain that relationship. He agreed that the children had all been adversely affected by not seeing their mother during this period.
Whilst not as stark as the regression observed in Z and Y, a consideration of X’s school reports would suggest a decline in her performance.
The father clearly still believes that Z was assaulted by the mother on 20 March 2016 and that the incident was consistent with his belief that she interacts aggressively with the children.
He had not seen any video footage of the alleged assault and accepted what he was told of the event.
Paragraph 178 of the father’s trial affidavit annexes a copy of an outcome released by Families SA “indicating that the applicant mother was found responsible for emotionally harming the children”. The inference is that the finding relates to the mother’s alleged behaviour in 2011 when she went into hiding with the children for two weeks during school term in order to avoid complying with the Court Orders.
The outcome report is marked “MAT26” in the bundle of documents forming Exhibit “5”.
The first report dated 29 September 2015 contains a finding of “significant symptoms of emotional distress” in respect of the children. A second outcome report dated 2 November 2015 changes the finding to include the mother as the person responsible for the emotional distress.
The father was challenged as to the accuracy of paragraph 178 and the basis for which he says there was a finding that the mother had caused emotional harm.
The father accepted that the investigation in September 2015 related to a fight between the father and his former partner Ms O. During the altercation B was alleged to have been pushed to the ground. The complaint was made by Ms D, although the father is likely to have not been made aware of the identity of the complainant.
As part of the investigation X was interviewed and her observations were consistent with the particulars of the allegation that during an altercation B was pushed.
Families SA spoke again to the father and X, but on the second occasion X had indicated that she had not seen anything and resiled from her earlier statement. The inference was that the mother had put X up to making the allegation.
The author of the report was a social worker, Ms R. Ms R was the witness to the alleged assault on 20 March 2016.
The father now accepts that it was Ms D, rather than the mother who made the notification.
The father accepted that paragraph 178 was incorrect as providing the basis for the alleged outcome report. Moreover, there is no evidence that the mother was involved at any stage of the process.
Paragraph 178 is misleading and it is difficult to find any benign explanation for the manner in which the paragraph was crafted.
The father was shown paragraph 57 of the family consultant’s second report dated 6 March 2017. The family consultant records the spontaneous conversation with Y and X about the alleged assault.
The following is recorded:-
[57]Y spontaneously entered into the conversation by saying “I was there but I didn’t see what happened”. X then said “I didn’t see anything” to which Z said to X, “When I got slapped? You saw it!” X said, “No I didn’t”. However, Z insisted “Yes you did! You were there. You’re a key witness” He then chanted “key witness! key witness! key witness!”. Y then said “I was there but I looked away”. When this statement was clarified, Y said “I was there but I ain’t gonna say what happened”.
It was put to him that he had been speaking to Z about the Court case and the alleged assault. The father conceded that he had discussed the incident with the children. He accepted that the children missed their mother.
The family consultant considered that the information obtained from the children “seemed somewhat confused and it appeared that they had been exposed to information about the family law proceedings and the mother’s criminal matter”.
I find that the father actively engaged in discussing with the children the proceedings and the alleged assault.
The father was questioned in respect of Z running away from his home in October 2015. It appears that the children had two way radios with them and were able to contact the father. The father had a base station and the import of his evidence is that it was a coincidence that the children had the two way radios and that his base station was able to receive communication from them.
Under cross examination by counsel for the ICL the father set out the day to day routine for the children. He advised that the children got up between 6.30 am and 7 am, that he organised their uniforms, breakfast, homework and that he would take them to school and on occasion directly into their classroom.
The father was also involved in Z’s class and would assist in class reading.
When Z came home from school at 11 am they would engage in some form of outdoor physical activity and from time to time the father was assisted by the service of a home nurse.
Paragraph 58 of the father’s trial affidavit refers to the allegation that Z sexually abused Ms D’s daughter B. Whilst the father has entered into a safety plan, he does not consider that Z presents as a risk to B or anyone else.

Little evidence was presented in respect of this allegation. I have not been asked to make any finding and in any event the issue is not capable of reflecting adversely on the father.
Z apparently attends school on a number of half days per week. The father is actively engaged in discussing with the school the future progress and he confirms that it is his intention is that Z should transition back to fulltime school attendance.
The father conceded that but for the alleged assault on 20 March 2016 he would have pursued his original orders for shared care.

Ms M

The evidence of this witness is as set out in her affidavit of 10 July 2017.
She has been in a relationship with the father since October 2015. She has two children. The father and Ms M do not live together and I accept her evidence that they maintain separate residences.
Ms M would come into contact with the children on three to four occasions per week and she holds a poor view of the mother (believing that she did assault Z). I also accept her assessment that the children miss their mother, that Y was particularly affected by the disruption to his relationship with her and that there are issues in respect of X approaching puberty.
Whilst I considered that Ms M was a person protective of the children and generally truthful, she did little to resile from her negative view and low regard for the mother.

FAMILY CONSULTANT

By orders dated 7 October 2014 and 15 December 2016, the family consultant has prepared two family reports dated 8 January 2015 and 6 March 2017. She also gave evidence as a witness in the proceedings.
The first report is in respect of the competing applications of the parties with the mother seeking sole parental responsibility for the children and their primary care, whereas the father sought orders that the children live with each of them on an equal time basis.
The family consultant considered that the main issues were the allegations of violence, the children being coached by the parties and the high level of conflict between the parties to the detriment of the children.
The first report was prepared at a time when the father had separated from Ms D and he considered his ability to communicate effectively with the mother had deteriorated after the mother and Ms D commenced a friendly relationship.
The observed interaction between the children and parties was of assistance.
The family consultant observed that Z was very affectionate towards his mother and their interaction was positive and demonstrative of a strong emotional attachment.
The assessment as set out at paragraph 35 of the report:-
Overall the most noteworthy aspect of this observation was the degree of Z’s affection towards [the mother]. [The mother’s] ability to respond to each child’s activity in a way which affirmed them and reinforced their behaviour was also noteworthy.
The father was seen to interact positively with the children and a good relationship was also observed between the father’s then partner, Ms O and the children.
The family consultant commented on the differences in the observed interaction between Z and his parents. With the mother the child was affectionate and positive, with the father he was observed to be “petulant and angry”.
The information from the children’s school principal was that the conflict between the parties was adversely impacting the children’s ability to function in the school environment.
The school principal considered that the children were more settled at school whilst in the care of the mother than with the father.
Consistent with the evidence, the principal reported that the mother was prepared to engage positively in management strategies for Z including medication, whereas the father was opposed to the process.
The principal was of the view that Z was an extreme case and that medication would be required to “break maladaptive patterns of behaviour”.
At the time of the report Z was attending school until 11.30 am each day. The difficulties experienced by the school are summarised at paragraph 49 of the first report:-
…[The principal] said that Bruce had physically incapacitated a teacher, that he had obsessive language outbursts, and also obsessive themes about killing and death. He further advised that Z had been suspended for bringing a knife to school. He also reported that Z had told him that he wanted to protect his mother and that he would get an axe “to stop Dad from hurting Mum”...
The family consultant considered that a shared-care arrangement was not viable for the children and was of the strong view that irrespective of which party could be believed in respect of the allegations made by each of them against the other, the relationship between the parties had deteriorated to such a level that they had been adversely affected by the animosity clearly on display.
The family consultant recommended that the children should be in the primary care of the mother given her opinion that she was the parent most attuned to the needs of the children and was more likely to accept and act on the advice of the health professionals engaged to assist in the management of the children, but in particular Z and Y.
At the time of the second report dated 6 March 2017, the children were living with the father and only X and Y were spending time with the mother.
The family consultant was not convinced that the father was genuine in his view that it was important for the children to maintain a relationship with the mother.
Whilst the father expressed certainty that the mother had assaulted Z on 20 March 2016, the family consultant considered that the reports of the children as to the incident were confusing and by implication inherently unreliable.
The children have been the subject of inappropriate coaching by each of the parties over a long period of time.
The father did not hold the mother in high regard and she considered that the father was controlling and set upon a path to alienate the children from her.
The extent of the involvement by the child protection agencies is a distressing feature of the family. There is a history of allegation and counter-allegation and there are extensive notifications that each party has made against the other.
Consistent with his earlier position, the father was not prepared to accept that medication would assist in Z’s management. He indicated to the family consultant that following a discussion with the child’s paediatrician he had agreed to participate in a trial, but it was now the mother who was not prepared to engage with him in that she would not provide him with the ADHD medication or the prescriptions.
The family consultant observed that of the three children Z was the most protective of the mother and demonstrably more affectionate.
The family consultant highlighted that this observation was consistent with her earlier observation in preparation for the first family report.
There was clearly a difference in the parenting styles of the parties. The mother appeared to have a higher level of emotional attunement as distinct from the father who “took on a teaching/director role”.
The observations of the family consultant were also consistent with the findings of Families SA that the children had suffered emotional abuse arising from the unrelenting acrimony engendered by the parties.
Z was observed to actively seek physical affection from the mother and her response was seen to be appropriate.
The family consultant remained concerned however as to the extent that the parties had influenced the conduct and views of the children.
The family report was prepared at a time when the Court had not yet determined the ongoing interim arrangements for the children and Z’s time with the mother was the subject of supervision.
The family consultant was able to provide updated information in respect of the children’s attendance at school. It would seem that Z is attending school on a limited basis without any clear understanding as to whether he will resume fulltime attendance and in particular the likelihood of his transition from primary school to secondary school.
Term 2 was apparently very difficult for Z and there were clear management and behavioural issues that have adversely impacted upon his academic progress.
A student disability consultant referred Y for a second assessment for Autism Spectrum Disorder (“ASD”). Y had been seen in early 2017 and an initial diagnosis was that he met the relevant criteria for ASD. The assessment procedure was comprehensive and involved all relevant aspects of Y’s life including the parties, his teacher, observations of the child’s engagement in the classroom and psychological and behavioural assessments.
Y has met the criteria for ASD.
The family consultant had the opportunity to consider the assessment report that underpinned Y’s diagnosis of ASD dated 26 June 2017 and Exhibit “1” in the proceedings.
By reference to the report, the following summary is of assistance:-
Y presented as a quiet and gentle boy who requires significant support to function in the classroom setting. He has difficulties with social communication and interaction, repetitive behaviours and sensory processing difficulties. He was rated as requiring significant support (level 2) in both the social and behavioural areas of the diagnostic criteria for ASD in the DSM-5.
It is suggested that there should be significant intervention in order to assist Y including psychological support for Y and his family to provide education and a better understanding by Y’s parents as to the child’s intellectual needs, occupational therapy to assist in Y’s motor skills and sensory needs and support for Y to improve his social skills and classroom education.
The family consultant is of the view that X was a more resilient child and did not present with the behavioural difficulties of Z and the intellectual disabilities of Y.
The school reports suggest that X performed at an average to good level across the board curriculum although her academic performance had declined in recent time.
The family consultant was asked to consider a report in respect of an incident that occurred on 29 May 2014 when Z was observed to mistreat a pet lizard. She agreed that this was an example of the child’s challenging behaviour, not only in terms of the child’s inability to understand that cruelty to an animal was unacceptable, but also in terms of his refusal to cease the offensive behaviour. Z demonstrated oppositional and defiant behaviour consistent with his diagnosis.
It is his refusal to comply with directions that has limited his ability to attend school for lengthy periods.
She agreed that Z needs a “firm hand”.
The question was put to the family consultant as to how Z might be better focussed in terms of his adverse behaviour. She considered that the children need one parent as the primary carer. The father was observed to be quite controlling and better able to set limits and boundaries for the children, but lacked warmth. The mother was less able to impose regime but is more emotionally attuned to the children, and in particular Z.
The uncertainty arises in respect of the parties’ ability to manage Z’s behaviour as he gets older. He will obviously grow in size and strength and the onset of puberty may well present unexpected and difficult challenges for him and his management. The family consultant considered that it is important for Z to be in a secure relationship with at least one parent. At this stage, emotional attachment was considered by the family consultant to be more important in terms of Z and his management than a more controlled environment.
There are a range of programs that are available to assist these children with special and significant needs. The success of any intervention requires the parents to be immersed in the program. Put simply, much depends upon a determination as to which parent is most open to work with the children and relevant health professionals.
The children were observed to interrelate well with each other. No observations of sibling rivalry were made.
The family consultant noted a spontaneous response from Y that he missed the mother and whilst there was some basis to consider the statement a genuine reflection of Y’s views, the family consultant considered that much of what the children said generally was unreliable.
It was considered very important for Z that the conflict between the parties needed to be minimised and that the child should not be part of any argument or aggressive parental interaction.
The family consultant observed the children to be rigid, regimented and somewhat stilted in their interaction with the father. She considered that there was a missed opportunity for the father to demonstrate his ability to engage warmly with the children. Whilst difficult for the family consultant to form a conclusive view, it was her opinion that there was a substantial contrast between the manner in which each of the parents interact with the children.
Whilst the children’s environment should be the subject of structure, the warmth and emotional attachment observed in the mother’s interaction with the children cannot be underestimated.
The family consultant was asked to consider whether any importance could be placed on X contacting her father to advise him that the dog was unwell and of her concern. It was possible that the child was simply telling on her mother to her father in circumstances where she understood any complaint in respect of the mother’s care would be well received by the father, but there is also a possibility that X felt sufficiently comfortable with the father to provide the information.
There was certainty that the relationship between the parties is unlikely to improve and the children may continue to be unnecessarily involved in their parents’ ongoing conflict.

POSITION ADOPTED BY THE ICL

The ICL supports the father’s position. He considers that the environment promoted and proposed by the father is more structured and whilst there is less emotional attachment than is clearly evident in the relationship between the mother and the children, nonetheless she is considered to be less capable of managing the special needs of the children.
Z and Y have serious behavioural issues. The inability of the mother to deal effectively with the death of the children’s dog is a significant issue and demonstrates a level of dysfunction and chaos in the mother’s home.
The children present with significant vulnerability and it is the position of the ICL that the mother has not demonstrated strategies that she intends to put in place in respect of Z.

LEGAL PRINCIPLES RELEVANT TO PARENTING ORDERS

Neither parent seeks an order of equal shared parental responsibility. They are each unequivocal in their negative assessment of the other. I accept explicitly on the part of the mother and implicitly on the part of the father that their relationship is toxic, dysfunctional and damaging to the children. It is not likely that they will reconcile their differences.
The submission made on behalf of the mother is that the conduct of each of the parties is likely to constitute emotional abuse and that the children are at risk.
I do not consider that it is appropriate to find other than sole parental responsibility should be the appropriate order.
Section 60CA of the Act requires that the best interests of the children is the paramount consideration. This is best met by the application of the objects of s 60B(1). I bring to account the primary and additional considerations in respect of the matters as set out in s 60CC(2) and (3). In the circumstances of this case and in respect of the directions contained in s 60CC(2A), I have regard to the allegation and risks posed to the children of emotional abuse.
In circumstances where I am not able to make an order for equal shared parental responsibility, I propose to adopt the following approach:-
(1)To give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and underlying principles of s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both of the child’s parents, but considered against the need to protect the child or children from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3);
(6)That the evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.

PARENTING CONSIDERATIONS

MEANINGFUL RELATIONSHIP

In Mazorski & Albright [2007] 37 FamLR 518 Brown J considered that a meaningful relationship was synonymous with a significant or important relationship.
Prior to 20 March 2016 the children spent significant time in the care of each of the parties.
There had been a history of the children’s care being shared noting the final orders that had been made by consent on 15 July 2011.
The relationship between the parties is dysfunctional. Although it was only following the arrest of the mother on 24 March 2016 that there had been a hiatus in the care arrangements. That event resulted in a significant reduction in the mother’s time that X and Y and a cessation of time with Z until it was reintroduced subject to supervision and then ultimately without condition following Court Order.
The children have a good relationship with each of the parties. The family consultant did not consider that the proposals of each of the parties noting the support for the father by the ICL was likely to affect the relationship the children have with their parents.
Whilst clearly it is important to ensure that any orders that are made promote and support the children’s relationship with the parties, there is nothing in respect of the orders that each of the parties seeks which would adversely impact upon the relationship with their parents.

NEED TO PROTECT THE CHILDREN

The mother’s counsel argues that both parties “have failed abjectly in respect to their exercise of their parental responsibility of the children”. He considers (and the mother accepts) that the parties have wreaked “emotional havoc” on the children.
In the second report the family consultant summarised the issue in the following terms:-
[84]The subject children in this matter have been exposed to both parent’s negative views about the other. The parents’ focus on the dispute rather than on meeting their children’s global developmental needs in appropriate ways, has meant that neither parent has been emotionally available to the children to meet their developmental needs. Additionally, the parental conflict has created a sense of confusion in the children as well as an enormous emotional burden. The impact of this on the children is best demonstrated by Z’s ongoing behavioural issues. This assessment concluded that regardless of [the mother’s] outstanding criminal matter, both parents appear to have emotionally abused their children by being emotionally unavailable to them, and by exposing the children to their dispute and their negative beliefs about the mother parent.
The opinion of the family consultant reinforced the position adopted by Families SA namely, that the children were not just at risk of emotional abuse from the parental conflict, but their presentation, demeanour and behaviour have been the subject of adverse impact.
It is the consistent position adopted by the relevant health professionals that much (but not all) of Z’s conduct and adverse behaviour is a result of the dynamics between the parties.
There is little evidence that has been presented to suggest that the parties are likely to recognise the adverse consequences of their conduct on the children and take steps to ameliorate or mitigate the harm that their conflict has caused.

The children are likely to remain at risk irrespective of the orders that are made. It is hoped that an order in respect of sole parental responsibility will remove the principal catalyst for dispute.
It is an important consideration in this case not to conflate parental responsibility with time spent. The area highlighted by the evidence to be the most problematic for the children related to parental responsibility and in particular matters relating to the health of the children generally and the management of mental health issues affecting Z and now arising from Y’s diagnosis.

VIEWS OF THE CHILDREN

It is difficult to ascertain the extent of the weight that should be placed on the views expressed by the children.
The family consultant is not confident that there should be much regard to the children’s views and preferred to substantiate her opinion and recommendations by observation rather than the children’s narrative.
There is the further complexity of the findings by Families SA and the family consultant that the children have been subject to unrelenting influence by each of the parties.
The evidence supports that finding.
There is no circumstance where it could be stated that the parties made any effort to shield the children from the negative view that they hold of the other parent. The children are left in no doubt that each parent is highly receptive to any negative remark or disclosure made by the children that could place the other party in a negative light.
The family consultant was satisfied that the children have expressed a reliable view to spend more time with the mother. They are not fearful of either party and there is clearly an attachment to the mother. It is likely that the children are more emotionally bonded to the mother and that she has a higher level of attunement than does the father.
I do not propose to place significant weight on the views of the children, but I am not able to find that anything said by each of them would speak against the orders as sought by each of the parties.

THE NATURE OF THE RELATIONSHIP OF THE CHILDREN WITH THEIR PARENTS AND OTHER PERSONS

The mother has not re-partnered. The father has formed a relationship with Ms M. Whilst she was strongly supportive of the father’s position and disparaging of the mother’s parenting qualities, nonetheless she presented as a person likely to be a positive influence on the children.
The father and Ms M do not currently live together and at this stage there are no immediate plans to do so.
There is uncertainty as to the extent that Ms M will have any substantial influence on the children.
The father has had a number of relationships since separating from the mother. It has been a feature of his home environment that the children have had to adapt to the father’s sequential partners. Various complexities and challenges have arisen for the children in dealing with the father’s partners in an attempt to make sense of their present and future role.
The mother may cast some criticism in respect of the father for his apparent readiness to introduce new partners into the lives of the children. Her promotion of a friendship with Ms D, even to the extent of involving her as a supervisor when she was spending time with Z, suggests a lack of insight as to how the children cope with their parents’ complex lives.
It is uncontroversial that the children, in particular Z and Y are highly vulnerable and the evidence suggests that they are strongly affected by the conduct of their parents.

PARENTS’ OBLIGATION TO MAINTAIN THE CHILDREN

The gravamen of the proceedings is the extent to which each of the parties has the capacity or is able to provide for the care of the children and in particular the complex management needs of Z and Y.
The Court is assisted by the report of Ms T, psychologist, that focusses on the challenges that confront Z and what is an appropriate way forward to better manage his behaviour.
To a significant degree the father relies upon the involvement of Ms T to provide the appropriate future direction.
Z was referred to Ms T for educational assessment, recommendations as to future treatment and the implementation of treatment following the assessment.
A further catalyst was a request from Families SA following a number of distressing incidents that needed some urgent attention and focus.
It is not controversial that Z’s needs are made more complex by his dysregulation and the diagnosis of ADHD, PTSD and a milder form of ODD. The child has been included in the National Disability Insurance Scheme (“NDIS”).
The referral was from the child’s school and the first attendance was on 22 September 2015.
There have been multiple appointments involving parents, the child, the child’s teachers and other engaged health professionals.
The psychologist made particular note of the deterioration in Z’s conduct following orders made that initially prevented, but then later restricted Z’s time with the mother:-
Z was then unable to see his mother and the sibling that was identified as making the report about inappropriate sexual behaviour. The school reported a change in Z’s behaviour as previously his attendance had increased. Unfortunately, the school reported Z’s behaviour at school deteriorated and their goal was the experience to continue to be positive and maintain him at school while he was successful.
There was a strong recommendation that each of the parties needed to provide a constructive and positive environment for the child and should promote an ongoing and meaningful relationship between Z and each of his parents.
The father had become the “predominant parent” in respect of later sessions given that he was the identified appropriate person under the NDIS guidelines. Originally and until prevented from doing so by Court Orders and criminal proceedings, the mother attended with Z.
The therapeutic recommendations for Z will require the child to engage in cognitive behaviour therapy and play-based therapy consistent with trauma. There will need to be a focus on his learning and other activities and to support the attendance of an occupational therapist.
The parties will need to provide a safe environment and provide support for Z free of the damaging consequences of the parties’ conflict.
As discussed, Y’s diagnosis of ASD also requires a strong focus on attendance on other health professionals, psychological support and counselling, classroom support, occupational therapy to improve his motor skills and sensory needs and a less conflicted and more stable family structure.
X’s needs are not as acute as her brothers but nonetheless she needs to be supported in a safe and secure environment and given her propensity to adopt aspects of the litigation, a greater effort needs to be made to shield the child from further conflict.
The issues are finely balanced. The recommendation of the family consultant is that if the Court determines the mother does not pose an unacceptable risk, then her application for primary care and sole parental responsibility should be considered.
The recommendation is based upon observations of the warmth and strength of the emotional attachment between the children and their mother, but in particular Z and Y. Whilst neither parent has been “optimally child focussed” the family consultant considered that Z may be better assisted by the greater emotional attunement of the mother.
The child was observed to actively seek out the mother’s affection and physical closeness.
During the observed interaction Z was observed to sit next to the mother and watched Y and X engage positively with each other.
The history of the parties separate engagement with health professionals in respect of Z would suggest that the mother was more compliant and reliable in taking advice from professionals and acting upon it.
Whilst there are no orders sought requiring the parties to medicate Z, nonetheless the issue is not the particular treatment but rather, that the father was resistant to advice generally.
I have found that the father had no intention of accepting a medication regime irrespective of the advice of those tasked to assist Z in his ongoing management.
I also place weight on the opinion of the family consultant that the father is the least likely to support the children’s relationship with the other parent.
Following the alleged assault on 20 March 2016, the father took little or no steps to ensure that the children maintained a relationship with the mother. Irrespective of the veracity of the allegations made against the mother, it could not have been in dispute that the children were strongly bonded to her and providing safe arrangements were put in place, there was no good reason why some arrangement could not have been considered to assist in the maintenance of Z’s relationship with the mother. The family consultant observed the importance of that relationship and there is no suggestion that it was any less so as and from 20 March 2016.
The father acknowledged that he had simply accepted what he had been told about the incident and did not challenge the allegation, nor did he seek to explore the matter for himself.
Even after the issue had been resolved presumably on the basis that there was no evidence to support the allegation of assault, the father was not prepared to accept the possibility that there was no foundation to the charge of assault. Of significant concern are the distorted recollections of the children in circumstances where it appears they have been involved in a discussion about the matter.
It was an assertion made in the proceedings that each of the parties have attempted to influence the children.
It is not controversial that leading up to 20 March 2016 the mother was clearly invested in the day to day care of the children and had attended diligently to their needs and in particular their medical and therapeutic requirements.
The observations made by the children’s school are that the mother is an engaged parent. That position altered following the alleged assault.
I find that the mother is more likely to undertake the obligations necessary to maintain the children generally and in particular the more complex requirements of Z and Y.

THE LIKELY EFFECT OF ANY CHANGE IN THE CHILDREN’S CIRCUMSTANCES

Prior to 20 March 2016 I find that the significant obligations in respect of parental responsibility were undertaken by the mother. There is no evidence to suggest that she could not or would not undertake the same role.
The children have a good relationship with each of the parties. The family consultant records that they wish to spend more time with the mother but remain significantly connected with the father. I do not consider that the orders sought by each of the parties, whilst representing a change in the children’s circumstances, would have a detrimental or adverse impact on their relationship with the non-resident parent.
It is proposed that the children would maintain their attendance at their current school.
The evidence in relation Z’s school attendance is that his ability to maintain attention and control has diminished during the period that he has resided in the primary care of the father.
It could not be said that his circumstances have improved. If anything the reports of the school suggest that Z’s conduct has become more troubled and there is no plan that provides any confidence at this stage that Z will resume a higher level of active school engagement.
Y has also regressed. X is at best an average student.
There remains the distinct possibility that in the mother’s care the children will again be more settled as observed by the staff at the children’s school prior to March 2016.

FAMILY VIOLENCE

The principal focus of the father was to establish that the mother poses initially an unacceptable risk, but now a significant risk in relation to physical violence.
No evidence was presented which would enable the Court to find on the balance of probabilities that the mother has assaulted the children and in particular assaulted Z on 20 March 2016.
Additionally, there is no cogent evidence to support the contention that the mother’s general conduct presents as a risk to the children in respect of physical violence. That aspect of the father’s case was without substance.

ANY OTHER FACT OR CIRCUMSTANCE

The parties are agreed that an order should be made for sole parental responsibility. They each seek orders that they have the primary care of the children, but concede (in almost identical terms) that the children should spend significant and substantial time with the other party. The time is to be taken during both school term and school holiday periods.
The ICL supports an order for sole parental responsibility but considers that it should rest with the father, that the children should live with him and spend time with the mother consistent with the orders sought by the father.
In the circumstances of this case and whilst I have given careful consideration to the orders promoted on behalf of the ICL and the final submissions made by counsel, I consider that the balance between the differing parenting attributes of the parties is finely poised. The best interests of the children with regard to their complex physical and mental health issues are likely to be better managed by the mother.
As discussed, I do not consider that a determination of sole parental responsibility was necessarily synonymous with time that the children spend in the care of each of the parties. The history of conflict and dispute did not arise from the time spent arrangements but rather, from the parties’ inability to agree on appropriate management strategies for the children.
With the issue of parental responsibility resolved, there is an advantage to the children in spending as much time with each of the parties as is practicable.

CONCLUSION

I propose to order that the mother have the sole parental responsibility for the children and that they spend time with the father for five days a fortnight and one half of school holidays, with arrangements for time spent on special occasions and other ancillary orders to follow the general tenor of the separate proposals of each of the parties.

I certify that the preceding three hundred and forty (340) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 September 2017

Associate:

Date: 22 September 2017

[2017] FamCA 744

22 September 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

1970	Father born
1972	Mother born
1996	Mr P born (mother’s child from a previous relationship)
August 2000	Parties meet
August 2003	Mother separates from previous partner
Late 2003	Parties commence relationship
2005	Parties reside at F Street, Town S
27 July 2005	X born
20 September 2006	Z born
25 June 2008	Y born
September 2009	Parties separate
12 March 2010	Father commences proceedings in the Federal Circuit Court (formerly the Federal Magistrates Court)
July 2010	Father commences a relationship with Ms D
2011	Z commences attending upon a CAMHS psychologist
15 July 2011	Parties reach parenting arrangement by consent, minute of order produced
2012	Z commences school at N School, Town E
February 2012	Father relocates from Town W to Town E
April 2012	Father ceases employment
2012	Father’s child B born
June 2012 – July 2013	Mother commences employment at J Services as a casual worker
July 2013	Father separates from Ms D
November 2013	Father commences relationship with Ms O
30 May 2014	Mother recommences proceedings
July 2014	Dr H prescribes ADHD medication for Z
2015	Father separates from Ms O
2015	Z attends school from 8.30 am until 11.30 am each day
8 January 2015	Dr C produces the first family report
17 October 2015	Father commences relationship with Ms M
March 2016	Z ceases consultations with CAMHS
20 March 2016	Mother observed to have “smacked” Z across the head. Incident reported to Families SA
24 March 2016	Mother charged with aggravated assault against Z. Bail conditions include no contact with Z and supervised contact with other two children
26 March 2016	Father advised of charges against mother
4 May 2016	Mother’s bail agreement as varied; no requirement for supervision with other two children, no contact with Z
15 June 2016	Orders for children to live with father and for X and Y to spend two occasions per week with the mother
29 August 2016	Mother charged with aggravated assault against Y
8 November 2016	Mother’s bail agreement as varied; mother to spend time with Y as permitted under an order of the Family Court
10 November 2016	Mother’s time with Y recommences
6 December 2016	Mother’s charges of assault against Y withdrawn by Prosecution as no case to answer
9 May 2017	Mother’s charges of assault against Z withdrawn by Prosecution as no evidenced tendered
22 May 2017	Department for Child Protection report that inappropriate sexual behaviour occurred between Z and B