Clayton & Minshall
[2021] FedCFamC1F 183
•10 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Clayton & Minshall [2021] FedCFamC1F 183
File number(s): NCC 26 of 2014 Judgment of: AUSTIN J Date of judgment: 10 November 2021 Catchwords: FAMILY LAW – CHILDREN – PARENTING – Best interests – With whom the children shall spend time –Where the applicant and second respondent fathers contended the existing regime could not be sustained given the intensity of the dispute between the parties – Where the dispute narrowed to whether the time the children currently spend with the mother should remain the same or be expanded, reduced or eliminated – Risk of harm – Where the applicant father and second respondent father allege the children are at risk of physical and emotional harm in the mother’s care and sought to eliminate the children’s time with the mother – Where the children are at risk of emotional harm from the mother’s impaired style of parenting – Where the only measure which could temper such harm is curtailment of the time the children spend with the mother – Orders made – Applicant and second respondent fathers to retain parental responsibility and residence, with the children to spend limited time with the mother. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 11F, 60B, 60CA, 60CC, 61DA, 62G, 64B, 65AA, 65D, 65DAA, 69ZT Cases cited: A v A (1998) FLC 92-800
Hepburn & Noble (2010) FLC 93-438
Keane & Keane (2021) 62 Fam LR 190
Minshall, Clayton & Anor [2019] FamCA 388
Re Andrew (1996) FLC 92-692
Sedgely and Sedgley (1995) FLC 92-623
Division: Division 1 First Instance Number of paragraphs: 113 Date of hearing: 25, 26 & 27 October 2021 Place: Newcastle (via video link) Counsel for the Applicant: Mr Murray Solicitor for the Applicant: Toronto Legal Counsel for the First Respondent: Ms McMahon Solicitor for the First Respondent: NLS Law Counsel for the Second Respondent: Ms Gibbons Solicitor for the Respondents: Winder Lawyers ORDERS
NCC 26 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CLAYTON
Applicant
AND: MS MINSHALL
First Respondent
MR WILKIE
Second Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
10 NOVEMBER 2021
THE COURT ORDERS THAT:
1.All former orders relating to the following children are discharged:
(a)X, born … 2009;
(b)Y, born … 2011; and
(c)Z, born … 2014.
2.The second respondent shall have sole parental responsibility for X.
3.X shall live with the second respondent.
4.The applicant shall have sole parental responsibility for Y and Z.
5.Y and Z shall live with the applicant.
6.The parties shall take all reasonable steps to ensure the children spend time with the first respondent as follows:
(a)from 9.00 am until 6.00 pm on the first Sunday in March, June, September and December each year, commencing in December 2021; and
(b)from 9.00 am until 4.00 pm on 24 December each year.
7.For the purpose of implementing Orders 3, 5 and 6, the parties shall exchange the children at the McDonalds Restaurant, Suburb CC, NSW.
8.The parties shall take all reasonable steps to ensure the children are able to communicate with the first respondent in the following manner:
(a)by the first respondent being able to send letters, cards, and/or gifts to the children no more frequently than once per calendar month, and
(b)by the applicant and second respondent promptly sending to the first respondent:
(i)written acknowledgement of receipt of the first respondent’s written communication, and
(ii)any letters, cards, photographs, or other written communication that the children, or any of them, wish to be conveyed to the first respondent.
9.Pursuant to s 68B of the Family Law Act 1975 (Cth), the first respondent is restrained from entering upon or approaching within 100 metres of the following premises without the written consent of the applicant (in respect of Y and Z) or the second respondent (in respect of X):
(a)the applicant’s residence;
(b)the second respondent’s residence; and
(c)any school attended by the children.
10.Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
11.The applicant and first respondent shall notify the other of any medical emergency, illness or injury suffered by Y or Z whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
12.The second respondent and first respondent shall notify the other of any medical emergency, illness or injury suffered by X whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.
13.The applicant and the second respondent shall authorise and request the principal of any school attended by the children to provide to the first respondent, at her expense, copies of all school reports and school photograph order forms relating to the children.
14.Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number and email address.
15.By reason of potential inconsistency between Order 5 and an existing Apprehended Violence Order protecting Y, pursuant to s 68P(3) of the Family Law Act 1975 (Cth), the Registrar of the Newcastle registry of the Federal Circuit and Family Court of Australia (Division 1) shall send a sealed copy of these Orders to:
(a)the Registrar of the Local Court of NSW at Newcastle; and
(b)the Commissioner of the NSW Police Service.
16.Within 14 days hereof the applicant and second respondent shall cause the children to be delivered to the Senior Court Child Expert at the Newcastle registry of the Federal Circuit and Family Court of Australia (Division 1) to have explained to them the effect of these orders and, if deemed appropriate by the Senior Court Child Expert, the reasons for such orders.
17.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
18.Any and all other outstanding applications are dismissed.
NOTATION
A.Order 5 may be inconsistent with the provisions of the Apprehended Violence Order made against the applicant for the protection of Y by the Local Court of NSW at Newcastle on 26 July 2017 (and varied on 7 September 2017), in which case Division 11 of Part VII of the Family Law Act1975 (Cth) applies and these parenting orders prevail to the extent of any inconsistency.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Clayton & Minshall has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These proceedings, brought under Part VII of the Family Law Act 1975 (Cth) (“the Act”), concern three children now aged between 12 and seven years.
The applicant is the father of the two youngest children. They live with him.
The first respondent (“the mother”) is the mother of all three children.
The second respondent is the father of the eldest child. She lives with him.
This is the third round of litigation between the parties. Orders, intended to be final and conclusive, have been made twice before in October 2016 and June 2019.
Although these proceedings began as a wide-ranging dispute over the children’s residence and the allocation of parental responsibility for them, the trial culminated in a relatively narrow dispute about whether the time the children currently spend with the mother should remain the same or be changed by expansion, reduction, or elimination.
BACKGROUND
The mother and second respondent commenced their relationship in 2008. The eldest child was born to their relationship in 2009 and they separated shortly afterwards.
The mother and the applicant commenced their relationship in 2010 and the eldest child lived with them. The younger two children were born to their relationship in 2011 and 2014. The mother and the applicant finally separated in about June 2013, when the mother was barely pregnant with the youngest child.
Orders were first made in respect of the children between the parties in October 2016.
On 12 October 2016, consent orders were made in respect of the eldest child, providing for her to live with the mother, for the mother to have sole parental responsibility for her, and for her to spend alternate weekends with the second respondent. The next day, on 13 October 2016, more consent orders were made in respect of the two youngest children, providing for them to live with the mother, for the mother and the applicant to have equal shared parental responsibility for them, and for the children to spend substantial time with the applicant and the eldest child.
Less than a year later, in September 2017, fresh proceedings were commenced by the mother in respect of all three children. Those proceedings progressed to trial and were determined by orders made by Cleary J on 19 June 2019 (Minshall, Clayton & Anor [2019] FamCA 388). Those orders reversed the children’s residence and essentially provided for:
(a)the eldest child to live with the second respondent and for him to have sole parental responsibility for her;
(b)the two youngest children to live with the applicant and for him to have sole parental responsibility for them; and
(c)an embargo upon the children spending any time with the mother for 12 weeks but, thereafter, the graduated escalation of their interaction with her, beginning with supervised time at a contact centre once per fortnight and culminating in unsupervised weekend visits once per fortnight.
In December 2020, the mother commenced contravention proceedings against both the applicant and the second respondent which, in March 2021, resulted in findings that both the applicant and the second respondent contravened orders without reasonable excuse. Despite the adverse findings made against both the applicant and the second respondent, no sanctions were imposed upon either of them. The catalyst for the contravention dispute was the cessation of the children spending time with the mother from late October 2020. While the applicant and second respondent contended the children were resistant to spending time with the mother because she was immersing them in the parental conflict, she contended they were not trying hard enough to encourage the children to visit her.
The current proceedings were commenced by the applicant in February 2021, about a month before the contravention proceedings were concluded. He contended the regime imposed by the June 2019 orders could not be sustained. Given the intensity of the dispute between the parties, which has now spanned many years, the trial of these proceeding was expedited and listed in September 2021. By reason of unexpected personal complications encountered by the mother’s legal representatives (which it is unnecessary to elaborate in these reasons), over the objection of the other parties, the trial was pushed back a month until October 2021.
COMPETING PROPOSALS
The applicant moved on his Initiating Application filed on 23 February 2021. He seeks sole parental responsibility for the two youngest children and for them to live with him, which position reflects the current orders. He proposes that the children spend no time at all with the mother, but that they spend time with their older sibling by arrangement made privately between him and the second respondent. The applicant is supportive of the second respondent’s application in respect of the eldest child. He confirmed that he abandoned his own application for orders in respect of the eldest child.
The second respondent moved on his Response to Initiating Application filed on 8 March 2021. He seeks sole parental responsibility for the eldest child and for her to live with him, which position reflects the current orders. He proposes that the eldest child spend no time at all with the mother, but that she spend time with her younger siblings by arrangement made privately between him and the applicant.
Until the very end of the trial, the mother’s contention was that the children should return to live with her. She admitted her household with the children was formerly “dysfunctional”, which was why the children were removed from her primary care in June 2019, but she asserted her household is now functional due to her underlying psychological conditions having been diagnosed and treated and she has completed some parenting courses.
The mother’s proposal evolved as the litigation progressed.
Her first proposal was set out in her Response to Initiating Application filed on 23 March 2021. She wanted all three children to live with her and for her to have sole parental responsibility for them, thereby recovering the position she enjoyed before Cleary J’s orders were made in June 2019. She was content for the eldest child to spend alternate weekends with the second respondent, but wanted the two youngest children to only spend one weekend per month with the applicant.
The mother then filed an Amended Response to Initiating Application filed on 12 July 2021. She still sought to recover the residence of all three children and sole parental responsibility for the two youngest children, but was content to equally share parental responsibility for the eldest child with the second respondent. She still proposed that the eldest child spend alternate weekends with the second respondent, but that the two youngest children only spend one weekend each month with the applicant.
At the commencement of the trial, the mother tendered a minute of orders which proffered two alternative proposals.[1] The first represented only slight change to her existing proposal, expanding the time the eldest child would spend with the second respondent. The second option assumed the orders made by Cleary J in June 2019 would not be significantly changed and, in that event, she sought an expansion of the time the eldest child spends with her.
[1] Exhibit M1.
At the conclusion of the trial, just prior to the commencement of final submissions, the mother tendered an amended minute of orders.[2] Her ultimate position was that all three children should spend time with her on alternate weekends (Friday to Monday), for portions of school holidays, and on other special occasions. In the alternative, she proposed that the June 2019 orders remain in place, but be supplemented by orders facilitating her acquisition of information about the children and attendance at school functions. In either case, she implicitly accepted that the eldest child should continue to live with the second respondent and the two youngest children should continue to live with the applicant.
[2] Exhibit M5.
THE EVIDENCE
The applicant relied upon his affidavit filed on 6 September 2021 and the affidavit of his new domestic partner, Ms DD, filed on 14 September 2021.
Ms DD’s affidavit was not filed and served within the limits of past procedural orders,[3] so the mother took objection to it. The objection was overruled because the trial was pushed back by a month and so she still had plenty of time within which to consider it. As it transpired, the mother’s cross-examination of Ms DD was quite truncated, suggesting much of its content was uncontroversial.
[3] Orders 2 and 3 made on 16 June 2021; Order 1 made on 19 August 2021.
The mother relied upon:
(a)the two affidavits filed on 3 September 2021 by her and the maternal grandmother;
(b)a bundle of documents, tendered jointly with the second respondent;[4] and
(c)some other tendered documents.[5]
[4] Exhibit A.
[5] Exhibits M2, M3, M4.
The second respondent relied upon his affidavit filed on 6 September 2021 and the affidavit of the paternal grandmother filed on 10 September 2021. Although those affidavits were filed slightly late, no issue was taken. The second respondent also relied upon the jointly tendered exhibit.[6]
[6] Exhibit A.
The memorandum prepared by the Family Consultant (now called the Court Child Expert) on 21 May 2021, pursuant to s 11F of the Act, was also adduced in evidence. When the issue was raised with the parties before the proceedings were fixed for trial, none of them applied for the preparation of a more comprehensive family report by the Court Child Expert pursuant to s 62G of the Act.[7]
[7] Notations A and C made on 3 May 2021; Notation A made on 16 June 2021.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA and 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
CHILDREN’S BEST INTERESTS
These proceedings, just like those before, were characterised by reciprocal allegations of parental incompetence and outright physical and emotional abuse of the children. There is very little genuinely independent corroboration of the parties’ respective allegations.
There is little value to be gleaned from reliance upon the parties’ hearsay evidence of what they have been individually told by the children. That is because the children are alive to the parental conflict, deeply apprehensive about their involvement in it, and prone to tell the parents what they perceive will be gratefully received by the parent with whom they are then conversing. While such evidence is admissible (s 69ZT(1)), it has almost no probative weight (s 69ZT(2)). The findings which follow therefore avoid reliance upon the uncorroborated evidence of the parties and their witnesses.
Statements made by the children to the Court Child Expert are likely to be much more reliable than statements they have made to the parents or aligned family members. Far greater probative weight attaches to the independent evidence of the Court Child Expert and independently prepared documents tendered in evidence as exhibits.
PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
There was no dispute in the proceedings that the children each enjoy meaningful relationships with their respective parents, though there was an issue about the benefit the children are liable to derive from their relationships with the mother.
The Court Child Expert said this about the retention of the children’s relationships with the mother:
68.Given concerns about the psychological impact of the mother’s behaviour on the children, and the impact of ongoing parental conflict and litigation on the parenting capacity and emotional/financial resources of [the applicant] and [the second respondent], the proposals of [the applicant] and [the second respondent] would appear to be in the children’s best interests. While the children will experience loss in relation to the mother, their positive developmental trajectory henceforth is dependent on them having a parenting environment which is physically and psychologically safe and nurturing.
Evidently, the Court Child Expert doubts that the children can derive benefit from their relationships with the mother whilst ever they continue to respectively live with the applicant and second respondent, which residential arrangement the mother eventually conceded would continue to endure.
In cross-examination, the Court Child Expert said the children’s retention of close relationships with the mother was liable to risk the stability of their relationships with the applicant and second respondent and so it was important to consider carefully what benefit the children derive from the continuity of their relationships with the mother. The Court Child Expert considered the only benefit the children derived is the ability to identify the mother as their parent, which benefit was less important than ensuring the stability of their existing residence with their respective fathers. The Court Child Expert therefore recommended consideration of the restriction, or even elimination, of the children’s current regime of visits with the mother.
Such advice was couched upon a finding being made that the mother’s capacity for insight had not materially improved since the proceedings before Cleary J, which finding is made and later explained in the discussion of s 60CC(3) of the Act.
I accept the expert opinion evidence of the Court Child Expert, particularly since it was not submitted her evidence should be rejected. Instead, the mother’s counsel sensibly submitted that the Court Child Expert’s evidence should be evaluated with care because her memorandum was prepared on only a preliminary basis and she did not have access to any material produced on subpoena. Cognisant of such limitations, the Court Child Expert’s evidence is still accepted as being persuasive. While the mother might not agree with the evidence, there was no rational basis upon which to reject it. The Court Child Expert’s cross-examination did not reveal any deficit in her opinion evidence.
Conversely, the mother did not contend the children’s relationships with the applicant or the second respondent should be curtailed. Although she originally contended she was the better choice as the children’s primary carer, she abandoned her application to change their residence. She must accept they derive benefit from their relationships with the applicant and the second respondent.
Section 60CC(2)(b)
The mother’s allegations of the two youngest children’s physical abuse by the applicant were a prominent feature of the last proceedings determined by Cleary J, in which her Honour made these findings:
138.[The second respondent] represents a place of safety for [the eldest child].
139.[The applicant] offers a place of comparative safety for [the two youngest children].
The finding of the applicant “offering a place of comparative safety” for the two youngest children was an acknowledgment of the applicant’s conviction for assaulting the middle child in April 2017 and him being the subject of an apprehended violence order protecting the middle child until July 2022.[8] Cleary J ordered the middle child would live with the applicant regardless, but noted the inconsistency of orders as required by the provisions of the Act.[9]
[8] Reasons for judgment delivered 19 June 2019, paras 52, 94; Applicant’s affidavit, para 19.
[9] Order 9 made on 19 June 2019.
In these proceedings, the mother made more allegations of the applicant’s physical abuse of the two youngest children, but all of her allegations of the applicant’s mistreatment of the two youngest children are premised upon their verbal reports to her, which need not be true even though the mother believes them. Although she saw bruises on their bodies on some occasions in February 2020, April 2021 and May 2021,[10] she was still reliant upon the children’s reports about how the bruising was sustained. The bruising was just as consistent with the boys’ rough play with one another and other children. The mother knows both boys have been suspended at school for misbehaviour, including their violent conduct with other children.[11] The mother made numerous reports to the child welfare agency about her concerns, but no evidence was adduced to demonstrate her complaints were substantiated upon investigation.[12] It is almost inconceivable such evidence would not have been adduced if it existed.
[10] Mother’s affidavit, paras 62-64 and 77.
[11] Mother’s affidavit paras 75, 77.
[12] Family Consultant Memorandum, para 48.
The applicant denied the allegations of his abuse of the children.[13] He was not challenged over the truth of that denial. Nor was it put to him, for his admission or denial, that he had physically abused the children, as it should have been if the allegations were to be maintained. Ultimately, the contention was not maintained because the mother relented and conceded the children’s residence to the applicant and the second respondent. There is no need to protect the children from any harm which might result from them being physically abused by the applicant.
[13] Family Consultant Memorandum, para 43.
The mother also alleged the children were all subjected to “emotional abuse” and consequent harm by the applicant’s and second respondent’s denigration of her to the children. The applicant and second respondent both denied they did so. The mother admitted she had never witnessed any such denigration occur herself and that, in making the allegation, she was reliant upon the children’s reports to her. The evidence was insufficient to prove the alleged denigration had occurred. Nor did the evidence support any inference of the tangible risk of its occurrence in the future. Consequently, there is no need to protect the children from any harm which might result from the children’s exposure to the mother’s denigration by either the applicant or the second respondent.
Similarly, the physical and emotional safety of the children in the mother’ care was an issue of serious concern in the prior proceedings. Cleary J made these findings when considering the evidence under s 60CC(2)(b) of the Act:
80.The assessment of the Family Consultant, with which I agree, is that the subject children have been “chronically emotionally maltreated” in the mother’s household.
…
140.This consideration is of greater significance. The welfare of these children is at stake.
141.In the household of the mother all three children have been exposed to abuse and family violence and have suffered psychological harm.
142.The mother has hit, smacked and kicked the children. She has sworn at them in an angry and abusive way, “f… off”, “p… off. She has abused them with demeaning language “you’re feral”, “you’re a filthy pig”.
143.[The eldest child] explained to her paternal grandmother that the children have not used cutlery to eat in the mother’s home because [the middle child] stabs them with knives and forks.
…
146.In her oral evidence the Family Consultant stated firmly that the children have suffered cumulative emotional harm in the care of the mother.
…
148.I accept the opinions of the Family Consultant in both respects.
In respect of the alleged physical abuse in these proceedings, the Court Child Expert reported this about her conversation with the middle child concerning the children’s treatment in the mother’s care:
35.When asked what he understood about why his family were back at court, [the middle child] said “[the youngest child] got hit with a stick” by the maternal grandmother. When asked whether this was the first time the maternal grandmother had hit his brother, or him, [the middle child] said the maternal grandmother has hit them before, including with shoes.
36.The [Court Child Expert] asked [the middle child] whether anyone else in his family was physical with him or his brother, he said his father hit him a couple of times with his hand, but said this last happened about a year ago. [The middle child] said there is “a bit of yelling” in each parents’ household.
37.[The middle child] expressed concern that the Judge may decide that he and his brother cannot spend any time with the mother at all. When asked why he was worried about this, he said the mother was worried that she “might get in trouble at Court”. [The middle child] said he wanted the Judge to know that the mother had “been better lately He said, “The plank’s gone now …. I think it got thrown out”. ([The middle child] confirmed that he was referring to the wood the maternal grandmother used to hit [the youngest child]).
…
42.[The applicant] alleged that the children have been physically assaulted by the maternal grandmother with a plank of wood. [The two eldest children] provided information in this assessment to confirm that the maternal grandmother has hit them with some wood; however specific incidents were not detailed.
When cross-examined, the maternal grandmother denied hitting the children.
Eventually, the applicant and the second respondent disavowed the need to make any finding in these proceedings that the children are at unacceptable risk of subjection to physical abuse while in the mother’s care.
Turning then to the alleged emotional harm the children may suffer in the mother’s care, it is as well to recognise that, for the purpose of application of s 60CC(2)(b), the “abuse” from which children may need protection is defined to include “serious psychological harm” (s 4(1)).
The Court Child Expert reported this about her conversations with the two eldest children concerning their interaction with the mother, which evidence tends to support the inference that the children are more readily involved in the parental conflict by the mother than by either the applicant or the second respondent:
20.… Yet [the eldest child] said the mother has consistently told her that she will go back to live with her one day.
…
23.… Many of [the eldest child’s] comments were identical to complaints the mother made about [the second respondent] in her interview.
…
26.[The eldest child] said they have started seeing the mother again and the mother has continued to tell her that her and her brothers that they will be living with her soon. …
27.… It was evident [the eldest child] felt burdened by the pressure of the ‘tug of war’ she was experiencing.
…
38.[The middle child] said that his parents do not get along. He said he was not sure what the [applicant] thought of the mother, but knows that the mother does not like the [applicant] by the way she acts and the things she tells him.
The Court Child Expert’s opinion about the children suffering emotional harm caused by the mother was expressed thus:
63.… Given the mother’s reported views and actions about the children’s circumstances, her preoccupation with reversing the children’s current living arrangements, and the children’s presentations in this assessment, there is no doubt the children are enduring ongoing emotional abuse in their relationship with the mother.
…
65.… The longer these children endure emotional harm, the more compromised their development will be.
The Court Child Expert did not specifically describe the children’s “emotional abuse” or “emotional harm” as being “serious psychological harm”, so whether the mother’s conduct can be fairly described as “abuse” remains a moot point. Regardless, her conduct affects the children deleteriously, which is an important consideration under s 60CC(3) even if not under s 60CC(2)(b) of the Act.
As can be seen, the Court Child Expert premised her opinion about the mother’s causation of emotional harm to the children upon what she was told by the mother, her observation of the mother’s presentation, what she was told by the eldest child, and her observation of the children’s presentation. Importantly, her opinion was not materially reliant upon the uncorroborated allegations made against the mother by the applicant and second respondent.
I accept the Court Child Expert’s opinion evidence, which justifies finding the children need protection from the emotional harm which could, and even does, result from their continued exposure to the mother’s impaired style of parenting. The only protective measure which could temper such harm is the restriction or elimination of the children’s current regime of visits with the mother.
ADDITIONAL CONSIDERATIONS
Not all factors prescribed by s 60CC(3) of the Act were the subject of evidence or submissions, thereby reflecting the parties’ views about which factors were relevant and those which were not. Consequently, no “additional consideration” is discussed below unless it formed a material component of a party’s case.
Section 60CC(3)(a)
The eldest child told the Court Child Expert she was happy at the second respondent’s home but she thought she would be happier at the mother’s home.[14] She also told the Court Child Expert that she thought spending more time with the mother “would probably help” and she would like to live with her parents for equal time.[15] Those statements are not easily reconciled as, on the one hand, they suggest she would prefer to live with the mother, whereas on the other hand, her comments imply she would just prefer to ensure her time with each parent is more equivalent.
[14] Family Consultant Memorandum para 26.
[15] Family Consultant Memorandum paras 27, 29.
The eldest child also then told the Court Child Expert she would like any changed arrangements reviewed after a few months, which the Court Child Expert interpreted to possibly mean the eldest child felt concerned and insecure about spending more time with the mother.[16] During cross-examination the Court Child Expert’s opinion on that topic seemed to transform from a tentative to a firmer view. The Court Child Expert speculated how the eldest child’s suggestion of spending more time with the mother might “help” could well be a reference to how the child perceived it could help ameliorate the parental conflict, rather than be of any help to her.
[16] Family Consultant Memorandum para 30.
The second respondent commendably conceded to the Court Child Expert that the eldest child occasionally expressed a wish to live with the mother, but he maintained that she also sometimes avoided any contact with her.[17] Such contrariness is further evidence of the eldest child’s emotional turmoil. According to the eldest child’s reports to the Court Child Expert, she is well aware that the mother wants her to return and live with her,[18] but is also well aware that the second respondent’s family want her to remain living with them.[19] In the circumstances, it is unsurprising the eldest child feels “burdened by the pressure of the ‘tug of war’ she was experiencing”, just as the Court Child Expert said.[20]
[17] Family Consultant Memorandum para 60.
[18] Family Consultant Memorandum paras 20, 26.
[19] Family Consultant Memorandum para 26.
[20] Family Consultant Memorandum para 27.
There is far too much uncertainty about the true meaning of the views expressed by the eldest child to the Court Child Expert to repose any significant weight in them, particularly given her expressed contentment following her move to live with the second respondent over two years ago.[21] Even if the eldest child truly does wish to live with the mother, the mother’s ultimate proposal means she does not expect much weight should be reposed in the child’s views.
[21] Family Consultant Memorandum para 22.
The middle child told the Court Child Expert he did not want the current arrangement to change and he felt as though he spent enough time with the mother.[22] The youngest child did not express any view.[23]
[22] Family Consultant Memorandum para 34.
[23] Family Consultant Memorandum paras 40–41.
Section 60CC(3)(b)
The children’s relationships with their respective parents have already been discussed under the rubric of s 60CC(2)(a) of the Act. There is nothing to add.
The mother sought to emphasise the importance of the children’s relationships with her new child (O) and the maternal grandmother, but those relationships are no more important than those the children have formed with related adults and younger children within the milieu of the applicant and the second respondent.
However, the children’s ability to develop and maintain relationships with their half-sibling O is a factor which points strongly against the severance of the children’s relationships with the mother, for which outcome the applicant and the second respondent advocated.
Section 60CC(3)(d)
The eldest child convinced the Court Child Expert that she feels relaxed, safe and cared for within the second respondent’s household.[24] The mother did not try to contend otherwise.
[24] Family Consultant Memorandum paras 22, 28.
As for the two youngest children, the applicant conceded in answer to questions posed by the mother’s counsel that they have been much more settled throughout 2021, following changes to their medication regime. The parties therefore seemed satisfied to mutually accept the two youngest children are content living with the applicant.
As the mother’s application changed complexion during the trial, the residual question for consideration under this sub-section is the likely effect upon the children of any change made to the manner in which they spend time with the mother.
The applicant and second respondent either expressly or inferentially admitted that the mother’s elimination from the children’s lives (for which outcome they both applied) would likely cause the children consternation. They took the view such emotional upheaval for the children was a necessary repercussion for their greater good.
The Court Child Expert was not so convinced. While she held a firm view the children’s interaction with the mother needed to be pared back for their emotional protection, she baulked at recommending the mother’s complete elimination from the children’s lives. She countenanced in both her memorandum and oral evidence the prospect of the children having occasional visits (perhaps once per quarter) with the mother.
I accept the mother’s submission that the elimination of a parent from children’s lives should be a remedy of last resort. The long-term adverse emotional consequences of depriving children of a filial relationship with the mother for years of their minority should be avoided if reasonably possible.
Sections 60CC(3)(f) and 60CC(3)(i)
As it transpired, the most significant contentious issue at trial became the mother’s capacity to provide for the children’s emotional needs and the suitability of her attitude to the responsibilities of parenthood.
At this point, it will be remembered that Cleary J found in June 2019 that the children were “chronically emotionally maltreated” in the mother’s household. Unsurprisingly, attention in these proceedings focussed upon the extent to which the mother had been able to improve her parenting capacity in the meantime.
The mother deposed she had since “undertaken a variety of courses” to assist her to “become a better parent”.[25] It was commendable for the mother to have done so but, as the Court Child Expert said and the applicant ultimately submitted, mere completion of the courses does not necessarily equate to improved parenting capacity.
[25] Mother’s affidavit paras 24–30.
The mother also sought out psychological assessment and therapy,[26] but she was impelled to acknowledge she had not implemented the “multidisciplinary supports” which her psychologist had recommended. She continues to consult a counsellor under a mental health care plan.[27]
[26] Mother’s affidavit paras 18–23.
[27] Exhibit M2.
The self-improvement courses which the mother undertook were all completed prior to her interview with the Court Child Expert in May 2021. Additionally, the mother’s counsellor expressed her opinion about the mother’s acquisition of “greater insight” months before the mother’s interview with the Court Child Expert.[28]
[28] Exhibit M2.
Regrettably for the mother, no greater level of insight or self-awareness was on display either to the Court Child Expert in May 2021 or during the trial in October 2021.
The Court Child Expert said this of the mother:
48.The mother reported that she has made at least five reports to DCJ and police with allegations of harm to the children by their respective father’s. The mother reported to the family consultant that she examines, questions, and sometimes photographs the children, and has contacted the children’s school to ask about marks on the children’s faces that she perceives are present in photos posted on the school website. The mother discussed her actions in the interview with a stark lack of empathy. She demonstrated no insight into the children’s experiences of her behaviour; instead laughing inappropriately at times throughout the interview. The mother denied that her behaviour is emotionally abusive; however, counter alleged that [the applicant] bribes the children to report (or not report) certain things. The mother conveyed persistent negativity towards the other parties, and was unable to identify any positive aspects of the children’s relationships with their father’s, or the care they receive.
...
53.… The mother genuinely appeared unable to understand the concerns in relation to her parenting and behaviour with the children; yet nor did she appear psychologically or emotionally capable to face the reality of the circumstances at this time. This dissonance is likely to have reinforced and potentially amplified her rigid fixation on pursuing deficits with the other parties.
…
61.The mother wants the three children to live with her. The mother perceives that the children are at risk with their respective fathers. She does not believe that the children are at any risk in her care and cannot understand why previous orders were made. When asked whether she had made any changes to her parenting since previous proceedings, the mother said she has completed several parenting courses which have helped her to realise that she should not smack or yell at the children anymore.
62.The mother believes that she is a protective factor for the children. When asked to consider the impact on the children of spending less time with her, if the Court found the children were at ongoing risk with her, the mother expressed concern that there would be no one to protect them and check for signs of abuse if she was not involved.
…
64.The mother’s presentation in this assessment is very concerning. Despite a lengthy history of litigation, the mother has no insight into the concerns and limitations of her parenting. Instead of trying to address the concerns raised in previous proceedings, the mother is fixated on undermining the children’s stability with the other parties, and presenting the other parties as harmful and dangerous. She has exposed the children to questioning and examinations of their bodies, and has encouraged them to keep secrets. She demonstrates difficulty accepting medical advice regarding the children, and it appears the children may continue to endure physical discipline and a lack of age-appropriate routines in her care. The mother demonstrates negative parental behaviour which is persistent and repetitive, exposing the children to ongoing disharmony and possible trauma. The mother demonstrates little capacity for empathy for the children’s experiences. The family consultant is concerned that the mother’s parenting capacity may be impervious to change.
…
69.The mother’s proposal would not appear consistent with the children’s needs as she cannot understand the emotional harm she is causing the children, and demonstrates little understanding about why the children were removed from her primary care initially. If the children are regressing in their current arrangement of time with the mother, there may be devastating impacts on the children’s developmental trajectory if they were to return to the mother’s primary care.
(As per the original)
The Court Child Expert was not challenged about the efficacy of those opinions and I accept them as being correct. Having seen the mother cross-examined, I too gravely doubt the mother’s ability to change her attitude and materially improve her parenting capacity.
Based upon comments made by the eldest child to the Court Child Expert, I accept the mother has repeatedly told the children that they will return to live with her in the near future.[29] That seems likely because the mother’s deprivation of the children’s residence has been a central theme of her counselling. Her counsellor reported the issue had “dominated” their counselling sessions.[30] It must have been very unsettling for the children to have been consistently told by the mother that their places of residence with the applicant and the second respondent were under threat.
[29] Family Consultant Memorandum paras 20, 26.
[30] Exhibit M2.
The Court Child Expert also reported how the eldest child’s complaints about the second respondent were identical to those made by the mother,[31] strongly implying that the mother had shared her grievances with the eldest child and thereby directly involved her in the parental conflict.
[31] Family Consultant Memorandum para 23.
The middle child told the Court Child Expert that he was well aware the mother disliked the applicant, though he was unsure of how the applicant felt about the mother,[32] from which it seems readily apparent the mother is unable to shield the children from her antipathy, while the applicant is able to do so.
[32] Family Consultant Memorandum para 38.
The maternal grandmother, with whom the mother lives, has not been a bulwark against the mother’s behaviour. In cross-examination, she denied the mother’s household had previously been “dysfunctional” (contrary to the mother’s concession it indeed had been) and asserted the applicant and the second respondent had “stretched the truth” about the mother’s parenting deficits. She considered the children’s removal into the primary care of the applicant and the second respondent in June 2019 was wrong. The maternal grandmother is therefore not a settling influence upon the mother.
Although the mother said she doubted the truth of it, I accept the truth of the evidence given by the applicant and the second respondent about the children’s unruly and defiant behaviour when they return from visits to the mother. While the applicant and the second respondent each genuinely believes the mother’s incompetent parenting is to blame for it, other plausible explanations arose during the evidence. For example, the members of the applicant’s household changed, the two youngest children experienced changes to their medication regimes for ADHD, the children were locked down and home-schooled for periods during the pandemic, and their visits with the mother were interrupted for a period of months between October 2020 and March 2021.
The evidence does not enable a finding to be made as to the precise causes of the children’s unsettled behaviour when they return to the applicant and the second respondent following visits with the mother, but their immersion in the parental conflict and their differential experiences in the two parental households are likely to be influential factors. Despite the antiquity of the litigation first commenced between the parties in 2014, the parental disharmony has still not noticeably abated and so, in all likelihood, it never will. That strongly suggests steps must now be taken to reduce the children’s exposure to the parental conflict, which is emotionally damaging for them.
The applicant and the second respondent display more insight than the mother. They appreciate the mother’s importance to the children, but merely fear the consequences for them of the mother’s impaired parenting capacity.[33]
[33] Family Consultant Memorandum paras 56, 58–59 and 60.
Section 60CC(3)(k)
As earlier mentioned, the applicant remains bound by an apprehended violence order protecting the middle child until July 2022.
Section 60CC(3)(l)
The avoidance of further proceedings between the parties over the children is an important consideration, as was appropriately identified by the Court Child Expert.[34] Another burst of litigious activity would be unbearable for the children and the parties.
[34] Family Consultant Memorandum para 16(III).
Section 60CC(3)(m)
In final submissions, both the applicant and the second respondent sought to justify the mother’s elimination from the children’s lives on the basis of their honest belief in her parenting incompetence and their fear that, if their applications were not granted, they would be unable to cope with the mother’s continued involvement. It was contended their own parenting capacity would then degrade with concomitant detriment to the children. The submission was made in reliance upon a long line of authority (Sedgely and Sedgley (1995) FLC 92-623 at 82,259–82,260; Re Andrew (1996) FLC 92-692 at 83,200–83,203; A v A (1998) FLC 92-692 at 84,996–84,997; Hepburn & Noble (2010) FLC 93-438 at [43], [49]–[64]; Keane & Keane (2021) 62 Fam LR 190 at [72]–[85]).
In respect of the second respondent, his counsel could not identify any evidentiary basis for finding that his parenting capacity would be discernibly impaired with consequent detriment to the children if the mother was not eliminated from their lives. On the contrary, the evidence demonstrated the second respondent’s well developed parenting capacity in shepherding the eldest child through the worst of the parental conflict. No doubt he has been stressed by the experience, but he impressed as a measured and competent parent.
In respect of the applicant, there was a vestige of evidence for the submission,[35] but it was insufficient to satisfy the high standard required by the authorities to justify the elimination of a parent from the children’s lives. The applicant might not be coping as well as the second respondent, but the evidence fell considerably short of demonstrating he was at serious risk of losing his parenting capacity.
[35] Family Consultant Memorandum para 57.
CONCLUSION
Although the mother abandoned her applications for the children’s residence and parental responsibility, she still apparently harbours an honest belief that the children are at risk of harm in the primary care of the applicant and the second respondent. When giving her oral evidence she said there was nothing she wished to change in her affidavit. She said she continued to doubt the truth of the evidence given by both the applicant and the second respondent. She was impelled to agree that it would be difficult for her to share parental responsibility for the children when she does not trust the other parents.
The evidence comfortably rebuts the presumption for the applicant and the mother to share parental responsibility for the two youngest children and the presumption for the applicant and the second respondent to share parental responsibility for the eldest child (s 61DA(4)). In the end, the mother did not apply to disturb the orders made in June 2019, which exclude her parental responsibility for the children. The applicant will retain sole parental responsibility for the two youngest children and the second respondent will retain sole parental responsibility for the eldest child.
Accordingly, the provisions of s 65DAA are not engaged.
The two youngest children will continue to live with the applicant and the eldest child will continue to live with the second respondent. The mother acceded to the continuity of that residential arrangement.
The order requiring the middle child to live with the applicant may contradict the terms of the Apprehended Violence Order protecting the middle child from him, which is in force until July 2022. It is impossible to be sure, because the Apprehended Violence Order was not adduced in evidence. For abundant caution, these orders will be sent by the Registrar to the State court which made the Apprehended Violence Order and to the NSW police. In accordance with the Act, these orders will be attended by a notation that the parenting orders prevail to the extent of any inconsistency.
The issue then devolves to the extent of the mother’s continuing involvement in the children’s lives. Presently, the children spend time with the mother each alternate weekend, though the durations of their visits are not identical.
Despite the mother’s wish to expand, or at least maintain, the frequency and duration of the children’s visits with her, the evidence points more strongly against either of those outcomes.
Conversely, despite the mutual desire of the applicant and the second respondent to eliminate all visits between the children and the mother, nor does the evidence convincingly dictate that outcome.
The result which conforms most easily to the evidence is the curtailment of the amount of time the children spend with the mother.
There is at least some benefit the children can derive by maintaining their meaningful relationships with the mother, which is a primary consideration, but they are at risk of suffering emotional harm in the mother’s care and so the time they spend together should be minimised. The children will also derive benefit by forging a relationship with their half-sibling O.
Daytime visits once every few months, with all three children visiting the mother together, is likely to be sufficient insurance against the risk of harm identified by the Court Child Expert. That outcome falls within the limits of the Court Child Expert’s recommendations, which I accept to be reliable.
The risk of harm to the children will not be entirely eradicated under the orders now made, but the mother is more likely to be focussed on the joy of having the children together so infrequently that she will tend to desist from engaging the children in conversation about their fathers and the situations in their households and instead concentrate on making the visits pleasurable. The dilution of the mother’s involvement in the children’s lives will likely mean there is less destabilisation when the children return to the applicant and the second respondent.
Because the children’s visits with the mother will be infrequent, the applicant and the second respondent can bear responsibility for exchanging the children with the mother at the public location she proposed relatively near to her home.[36] Neither suggested that would be unduly inconvenient.
[36] Exhibit M5, proposed Order 9.
An injunction restrains the mother’s attendance at or near the children’s homes and their schools (without written consent) to prevent any attempt to circumvent the orders, the object of which is to limit the amount of contact between her and the children.
Since the face-to-face visits between the children and the mother will be infrequent, provision is made for the mother to periodically correspond with them in writing. The applicant and the second respondent proposed an order in similar terms.[37] The order requires the applicant and the respondent to acknowledge receipt of the correspondence so the mother can have greater confidence it has reached the children.
[37] Initiating Application, proposed Order 14; Response, proposed Order 5.
The mother’s proposal for regular telephone communication is rejected.[38] That would undermine the objective of these orders, which is to minimise their unobserved interaction and their unheard conversation. Written correspondence can be monitored surreptitiously by the applicant and the second respondent to ensure the content is appropriate without the children needing to know.
[38] Exhibit M5, proposed Orders 10 and 11.
No orders are made to regulate the manner in which the applicant and the second respondent must ensure that the children spend time together much more frequently in the care of either one of them. Neither sought any such specific orders to that effect. Historically they have ensured the children see each other regularly without the need for any binding order. There is no point making an order which merely directs that the children spend time together when the applicant and the second respondent agree because, if they are capable of such agreement, as they obviously are, an order is unnecessary.
The parties’ alleged mutual denigration of one another has been a feature of their dispute for years. An injunction is made to prohibit it, though observance of the injunction will entail the parties’ bona fides.
The orders require the dissemination of information between the parties concerning the children’s medical and scholastic progress and also enable the mother to procure school photographs of the children.
The orders also require the parties to keep one another appraised of their contact details in case of emergency.
The management of the children’s medical conditions was fertile ground for dispute in these proceedings. The applicant and the second respondent have exclusive parental responsibility for the children and should be able to exert it without interference by the mother. The orders she proposed which inform her about the children’s medical providers are unnecessary.[39] If the children require medication in accordance with their doctors’ directions, they will be medicated before they spend the day in the mother’s care. That will help avoid any future dispute about the mother’s need to medicate the children.
[39] Exhibit M5, proposed Orders 18–20.
Any other orders proposed by the parties which were not mentioned in either the evidence or in submissions were presumed abandoned.[40]
[40] Initiating Application, proposed Order 17; Response, proposed Order 9.
Finally, the orders require the applicant and the second respondent to present the children to the Senior Court Child Expert for an independent explanation of the orders and, if deemed appropriate, an explanation of these reasons. The mother criticised them for the manner in which they either did or might have explained to the children the orders last made in June 2019.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.
Associate:
Dated: 10 November 2021
2