COLINSON & COLINSON

FAMILY COURT OF AUSTRALIA

COLINSON & COLINSON

[2012] FamCA 728

FAMILY LAW – CHILDREN – final orders – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where the parties have a poor relationship – where it is not in the best interests of the children for the parties to have equal shared parental responsibility – presumption rebutted – orders that the father have sole parental responsibility.

FAMILY LAW – CHILDREN – final orders – with whom a child lives – where the mother alleges that the father has sexually abused her and physically abused the children – where there are serious concerns about the mother’s capacity to provide for the children’s needs and particularly their emotional and intellectual needs – where the matter has a long and complex history – where the mother has not established her allegations of abuse against the father – where the Court accepted evidence that the stressful environment of the mother’s household was having a detrimental effect on the children’s wellbeing – best interests – orders that the children live with the father and spend time with the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZT & 69ZX

Goode and Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Colinson

RESPONDENT:

Mr Colinson

INDEPENDENT CHILDREN’S LAWYER:

Mr Whelan

FILE NUMBER:

SYC

6594

2007

DATE DELIVERED:

29 August 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Dawe J

HEARING DATE:

23-25 January 2012; 27 January 2012;
30-31 January 2012;
1-3 February 2012 &
9 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Livingston

SOLICITOR FOR THE RESPONDENT:

L P Alidenes & Company

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Neville

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

Orders

All previous parenting orders are hereby discharged
The father have sole parental responsibility for the children M born … November 1999 and J born on … March 2003.
The children live with the father from 10.00 am Saturday 1 September 2012.
The father shall authorise all medical practitioners or health care providers treating either of the children and any school tutor or educational professional providing education assistance to either of the children to provide information to the mother about the children’s health, treatment, progress and development.
The children spend time with the mother as follows:
(a)During school terms and during any New South Wales school holiday period before 1 December 2012;
(i)From the conclusion of school on Thursday until the commencement of school on the following Monday in each alternate week commencing on Thursday 20 September 2012 and in the event that Monday is a public holiday or a pupil free day then such time is extended to the commencement of school on the Tuesday;
(ii)In the other week from the conclusion of school on Wednesday to the commencement of school on Thursday commencing on Wednesday 26 September 2012;
(b)For half of each New South Wales school holiday period as agreed and in default of agreement for school holidays commencing after 1 December 2012:
(i)In years ending in an even number (e.g. 2012, 2014, 2016 etc) for the first half of such holidays commencing at 9.00 am on the first Saturday in the holidays and concluding at 9.00 am on the second Saturday in the holidays;
(ii)In years ending in an odd number (e.g. 2013, 2015, 2017 etc) for the second half of such holidays commencing at 9.00 am on the second Saturday in the holidays and concluding at 9.00 am on the third Saturday in the holidays.
(c)In years ending with an even number (e.g. 2012, 2014, 2016 etc) from 1.00 pm Christmas Eve until 1.00 pm Christmas Day;
(d)In years ending with an odd number (e.g. 2013, 2015, 2017 etc) from 1.00 pm Christmas Day until 1.00 pm Boxing Day;
(e)In the event the children are not otherwise with her, on Mother’s Day from 9.00 am to 5.00 pm;
(f)In the event that the children are not otherwise with her, on each of the children’s birthdays for a minimum of two (2) hours; and
(g) Such other time as the parties mutually agree in writing.
The father do make all necessary arrangements to ensure that Dr S is appointed as the children’s treating general practitioner and if Dr S is not available such other general practitioner as the father may choose.
Each parent is restrained from taking either child to any medical or allied health professional without the express written permission of the other save for a medical emergency and in the case of a medical emergency shall immediately notify the other parent of such emergency.
Notwithstanding anything to the contrary in these orders, if the children are with the mother at the relevant time, the father shall collect the children from the mother’s home for all soccer training and competition games and return them to the mother’s home at the conclusion of such training and games.
Notwithstanding any provision herein to the contrary, the children shall spend time with their father:
(a)In the event the children are not otherwise with him, on Father’s Day from 9.00 am to 5.00 pm;
(b)In the event the children are not otherwise with him, on each of the children’s birthdays for minimum of two (2) hours;
(c)From 9.00 am Greek Easter Sunday until the commencement of school on Greek Easter Monday in each alternate year commencing 2012;
(d)From the conclusion of school on Greek Easter Good Friday until 10.00 am on Greek Easter Saturday in each alternate year commencing 2013; and
(e) Other times as agreed between the parties.
Neither party shall permit the children to have access to any video or computer game that has an ESRB rating of M (Mature) 17+ or higher.
That each party refrain from making critical or derogatory remarks in relation to the other party in the hearing or in the presence of the children and each party take all reasonable steps and do all things necessary to ensure that no third party makes critical or derogatory comments about the other party in the presence or hearing of the children.
The appointment of the Independent Children’s Lawyer be discharged one (1) month from today.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Colinson & Colinson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: SYC 6594 of 2007

Mr Colinson

Applicant

And

Ms Colinson

Respondent

REASONS FOR JUDGMENT

Introduction

Proceedings between the mother Ms Colinson (“the mother”) and the father Mr Colinson (“the father”) relate to future parenting arrangements for their two children M born in November 1999 (now aged 12) and J born in March 2003 (now aged 9).
The litigation between the parties first commenced in September 2007. Subsequently the children’s issues were resolved by consent with orders being made on 14 December 2007 which provided that the parties have equal shared parental responsibility for the children and that the father spend time with the children as follows:-
2.(a) During school term
(i)Every Tuesday afternoon to commence at the conclusion of school until Wednesday morning at the commencement of school and,
(ii)Every Thursday afternoon to commence at the conclusion of school until Friday at the commencement of school.
(iii)In soccer season, (which is ordinarily between March and July), on each alternate Saturday from 7.00am until 6.00pm and otherwise, from 10.00am to 6.00pm.
(iv)Each alternate Sunday from 10am until the commencement of school on Monday.”
The order also provided for the father to spend extended time with the children for half of each school holidays and on special occasions. Otherwise the children were to live with the mother.
While the mother’s application for property settlement was outstanding the father sought orders varying the previous children’s orders which were made by consent.
There have been subsequent alterations to the applications and responses of the parties.
The mother filed a Further Amended Initiating Application seeking to reduce the time the father spent with the children. The mother filed a Notice of Child Abuse on 2 February 2010 in which she alleged, sexual and verbal abuse by the father towards her in front of the children and physical abuse of the children by the father.
The mother subsequently withdrew the property settlement proceedings.
At the commencement of the hearing of the final trial before me in late January 2012, the mother was seeking orders which provided for the discharge of the previous orders and in their place that the parties have equal shared parental responsibility, except for medical issues, for which the mother was seeking sole parental responsibility. She sought orders at that time that the children live with her and spend time with the father one weekend each fortnight and specific arrangements for school holidays.
At the commencement of the trial the father sought final orders as set out in his Amended Response filed on 16 August 2011. That proposed that the children live with the mother and that during school term the children spend time with him from the conclusion of school on Thursday to the following Sunday at 9.00 am in week 1 and from the conclusion of school on Thursday until the following Monday in week 2. There were also proposals for school holiday time and special occasions.
The father specifically sought an injunction restraining the mother from taking either child to any medical practitioner or counsellor, with the exception of a general practitioner, without the prior written consent of the father.
During the trial the father was given leave to amend the orders which he was seeking. The father then sought orders that he have sole parental responsibility for both children, that they live with him and that they spend time with the mother on five days in each fortnight. He also sought ancillary injunctions.
During the trial the mother sought orders that she have “sole parental guardianship and custody for the children … with respect to the children’s medical, wellbeing and educational matters”. She also sought orders that the children reside primarily with her and spend time with the father during school terms every fortnight from the conclusion of school on Friday to the commencement of school on Monday (and if Monday was a Public Holiday the next school day) and for shared school holidays and special occasions.

Hearing

The trial of this matter was heard over 10 days commencing in late January 2012. Judgment was reserved on 9 February 2012. At the trial the mother was unrepresented. The father was represented by Mr Livingston of counsel, the Independent Children’s Lawyer by Ms Neville of counsel.

Brief Background

The mother was born in England in 1967 and is currently 45 years of age. She moved to Australia in 1992.
The father was born in 1972 and is currently 40 years of age.
The parties were married in Sydney in 1998.
There are two children of the marriage namely M born in November 1999 and J born in March 2003.
The father says that the mother suffered from post-natal depression following J’s birth.
The mother concedes that she suffered from emotional difficulties during the relationship however attributed the cause to the abuse suffered at the hands of the father.
The mother says that the father’s alleged extra-marital affair was also an exacerbating factor.
The parties separated in late 2004 and were divorced on 2 December 2007.
The mother alleges that the father was verbally aggressive, emotionally controlling and sexually abusive of her during the marriage.
She further asserts that the father became physically aggressive towards her following the parties’ separation.
The father says that in 2007 he commenced a relationship with with whom he now lives. She has a son M from a previous relationship. M resides with the father and Ms T.
Proceedings in relation to children’s matters were instituted by the father in September 2007.
Consent Orders were made on 14 December 2007 providing that the parties have equal shared parental responsibility and that the children reside with the mother. Further orders were made for the children to spend time with the father on Tuesday and Thursday night each week, each alternate Saturday during the day and each alternate Sunday night.
The mother says that she only agreed to these orders due to the threats she received from the father. This is denied by the father.

Main Issues

It is the mother’s position that the father is neglectful of the children’s needs, particularly their medical needs.
The mother asserts that M is autistic. The father does not accept that the steps the mother has taken in relation to M allow the diagnosis of autism to be maintained.
The mother alleges the father has been violent.
The mother alleges that M has suffered from depression and had suicidal intentions during 2010.
The father denies he has abused the mother or the children. He maintains that the children will receive better care when residing with him. The father maintained that the mother’s attitude and parenting capacity were of serious concern.

The Law

These proceedings were pending on 7 June 2012 and therefore the provisions of the Family Law Act 1975 (Cth) (“the Act”) in place prior to the recent amendments are applicable.
The provisions of the Act which are most significant to this matter are therefore the following:
Section 60B (1) and (2)
Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA
Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC
How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)     The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:           Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)    Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Section 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note:   The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA
Court to consider child spending equal time or significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)    Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and (sic)
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child.   These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity -- the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Section 69ZN
Principles for conducting child‑related proceedings
Application of the principles
(1)     The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b)in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)    Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child abuse and child neglect; and
(b)the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Section 69ZT
Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note:Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii)the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5)Subsection (1) does not revive the operation of:
(a)a rule of common law; or
(b)a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
Section 69ZX
Court’s general duties and powers relating to evidence
(1)In giving effect to the principles in section 69ZN, the court may:
(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c)give directions or make orders about how particular evidence is to be given; and
(d)if the court considers that expert evidence is required—give directions or make orders about:
(i)the matters in relation to which an expert is to provide evidence; and
(ii)the number of experts who may provide evidence in relation to a matter; and
(iii)how an expert is to provide the expert’s evidence; and
(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
(2)Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:
(a)about the use of written submissions; or
(b)about the length of written submissions; or
(c)limiting the time for oral argument; or
(d)limiting the time for the giving of evidence; or
(e)that particular evidence is to be given orally; or
(f)that particular evidence is to be given by affidavit; or
(g)that evidence in relation to a particular matter not be presented by a party; or
(h)that evidence of a particular kind not be presented by a party; or
(i)limiting, or not allowing, cross‑examination of a particular witness; or
(j)limiting the number of witnesses who are to give evidence in the proceedings.
(3)     The court may, in child‑related proceedings:
(a)receive into evidence the transcript of evidence in any other proceedings before:
(i)the court; or
(ii)another court; or
(iii)a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
Note:This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.
(4)In proceedings under this Part in which the court is required to regard the best interests of the child as the paramount consideration:
(a)subsection 126H(1) of the Evidence Act 1995 does not apply in relation to information that would:
(i)reveal the identity of a journalist’s source; or
(ii)enable that identity to be discovered;
if the court considers that it is in the best interests of the child for the information to be disclosed; and
(b)the court must not direct, under a law of a State or Territory relating to professional confidential relationship privilege specified in the regulations, that evidence not be adduced if the court considers that adducing the evidence would be in the best interests of the child.

Counsel referred to the decisions of Goode and Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461. The matter of Goode and Goode (Supra) which was an appeal from a decision in relation to interim parenting orders sets out in detail the consideration of the necessary factors pursuant to section 61DA and section 60CC.
The High Court decision of MRR v GR (Supra) emphasises the provisions of s 65DAA. It was stated at 466 that:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist (18). If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

Witnesses and a summary of their evidence

The mother relied upon her affidavit of evidence-in-chief. She gave extensive further oral evidence and provided numerous exhibits to the Court. The mother was cross-examined at length by counsel for the father and counsel for the Independent Children’s Lawyer.
During the mother’s cross-examination the evidence of Ms H was interposed. Ms H is a friend of the mother. She supported the mother in her role as mother. Her evidence also related to an “understanding” that the father separated from the mother because of his “relationship with [Ms T]” (see Exhibit 14).
The Court heard oral the evidence of Dr K. The mother relied upon the affidavit of Dr K, Consultant Paediatrician, filed on 20 January 2012. That affidavit (which was signed by Dr K’s secretary, rather than Dr K), had annexed to it correspondence confirming that Dr K had diagnosed M as having autistic spectrum disorder, with aspects of oppositional defiance disorder. The correspondence annexed to the affidavit include correspondence between Dr K and a speech pathologist and school reports and records.
The father and his partner Ms T each gave evidence and were cross-examined by counsel for the Independent Children’s Lawyer and the mother.
The Court heard the evidence of Ms R (see Exhibit 30) who is a teacher who had been providing tutoring for M.
On the application of the counsel for the Independent Children’s Lawyer the Court heard the evidence of Mr Mark Whelan, the Independent Children’s Lawyer. He gave evidence of a conversation with the mother about the children and in particular the mother’s comments that J had not been the victim of an attack by another boy when a rope was placed around his neck, but in fact J had placed the rope around his neck himself.
Counsel for the father cross-examined Mr Whelan, but the mother did not cross-examine him.
The Court then required the mother to give evidence about this issue. The mother was then further cross-examined by counsel for the father and counsel for the Independent Children’s Lawyer.
The Family Consultant Ms S who prepared the report of 13 January 2012 was called and was cross-examined by counsel and the mother.
The Court received 34 exhibits during the final hearing.
On 9 February 2012 counsel for the Independent Children’s Lawyer made final submissions first, followed by counsel for the father and finally the submissions of the mother.

Discussion and Findings

The evidence of both of the parties and the expert evidence of the Family Consultant clearly indicated that the mother and father maintain what was described as a “high conflict relationship”. The mother has filed affidavits, gave oral evidence and produced numerous exhibits which indicate that she maintained that the father was violent and abusive towards her and the children. In final submissions however, the mother maintained that whilst there was some risk that the father might show signs of aggression towards the children in the future, she was more concerned about the father’s alleged lack of cooperation in relation to the children’s treatment, schooling and education needs. In final submissions the mother indicated that she was “not denying the father to have significant time”.
The evidence of the mother of alleged abuse of the children and violence by the father needs to be seen in the context of the oral evidence, large affidavits and numerous exhibits and the Family Consultant’s detailed report and significant oral evidence.
The Notice of Child Abuse or Family Violence filed by the mother on 2 February 2010 (Document 27) set out the mother’s allegations at that time as follows:
1.    [The father] sexually abused me on or around December 2007. Both children witnessed the incident.
2.   [The father] verbally abuses me in front of the children calling me ‘fucking mole’, ‘whore’ and ‘fucking bitch’.
3.   [M] has stated that “I am frightened of daddy, Papou (grandfather) and Nonor ([Mr G Colinson, the father]’s brother).
4.   [The father] has punched [M] in the stomach on 2 April 2009. There is a current Interim AVO for [M] and [J]’s protection from their father.
5.   [J] has stated to me in or around April 2009 “I have been hit with a belt by Papou and have been smacked by daddy so hard I had a nose bleed.”
6.   On the 15 August 2009 [the father] was verbally aggressive to me in front of the children. [The father] pushed and shoved me away in front of the children.
In the mother’s affidavit the mother asserted that the parenting orders which were made by consent on 14 December 2007 were made in circumstances in which she alleged that she agreed to the orders “under duress, threats and abuse of domestic violence placed upon myself from [the father]l” (See paragraph 1.7 of mother’s affidavit filed on 17 January 2012). The father responds to that allegation by referring to the fact that both parties were legally represented at the time of the consent orders. He denies making any threat of any nature or any duress or abuse to induce the mother to enter into the consent orders. (Paragraph 5 of the affidavit of the father sworn on 20 January 2012). He annexes correspondence from the mother’s solicitors of the 25 October 2007 setting out the detailed background to the mother’s response to proposed consent orders.
In his affidavit the father responds to the mother’s allegations in relation to the apprehended violence orders in 2008 and 2009. The father’s explanation (which is accepted) is that the allegations did not result in any defended hearing but were either not proceeded with or withdrawn on undertakings without admission.
In response to the allegations made by the mother, the father filed his affidavit in which he denied ever punching M in the stomach or elsewhere.
The father denies ever hitting or kicking either of the boys, he denies throwing either child against a wall or harming either child.
I accept the father’s evidence in relation to the allegations made by the mother in relation to violence towards her or the children.
The statements made by the children to the mother and other persons from time to time need to be seen in the context of the mother’s behaviour and attitude towards the father and the children’s involvement in the high conflict relationship between the parents. This includes the interviews which have taken place between the children (in particular M) and others from the Police, Department of Human Services and other persons to whom the mother has taken the children.
The family report of Ms S the Family Consultant dated 13 January 2012 was prepared as a result of information obtained from various court documents and interviews with the parties and the children and other relevant persons in December 2011. Paragraph 15 of the report sets out some of the mother’s allegations made to Ms S:
(It is noted that ‘[M]’ is the correct spelling of the child’s name).
15. [The mother] said that [the father] (sic) was verbally aggressive and emotionally controlling and abusive of her – increasingly as the marriage continued. She said, however, that [the father] had not been physically aggressive towards her until the marriage was over. She said he had also been sexually abusive. [The father] believes what [M] and [J] have seen of the conflict has affected them emotionally
Paragraphs 19, 20 and 21 of the report state as follows:
19. [The mother] said she has ongoing fears that [M]’s low moods are due to having been abused in some way. [The mother] described [M] having recently demonstrated some inappropriate sexualised behaviour such as ‘Gyrating his hips and Prancing around, grabbing [J]’s toys Froggy and Honey bear and rubbing them on his [M’s] penis’. [The mother] believes that [M] needs psychological counselling.
20. [The mother] said she thinks that the children’s relationship with [the father] is deteriorating and she believes they are now fearful of him. While not directly alleging that [the father] was generally abusive of the children, [the mother] cited an occasion when [the father] was allegedly physically aggressive towards [M]. She said that in 2009 [M] had told her that [the father] had punched him in the stomach.
21. [The mother] implied that [the father] may be abusing [M] when she commented that in 2010 Dr [G] told her that he believed [M] had been emotionally or physically abused and wished to involve [the father] in any further interventions. [The mother] said that this did not occur, however, as “[M] made me promise that I would not involve his father”.
When M was interviewed by the Family Consultant he described his relationship with his father “positively”, being “fun” with “lots of laughter as dad makes a lot of jokes” (see paragraph 40 of the Family Consultant’s report). The Family Consultant said in her report at paragraph 47 “the children appeared to have easy, relaxed and affectionate relationships with each parent. The assessment did not find the children appeared to be fearful of either parent.”
In the section headed “Evaluation” the Family Consultant said at paragraphs 54 to 56:
54. [M], apparently, shows fewer signs of stress when he is in the care of his father. [M] should have a substantial and significant amount of time each fortnight with [the father].
55. As [M] enters the critical developmental stage of adolescence, his task is to consolidate a strong sense of himself and develop positive, healthy peer relationships. This can most properly be achieved from a home environment that is secure, well-organized (sic) and stress free. That such a fundamental aspect of his being, that is, whether or not he is a child with the global developmental disability of autism, is being debated by his parents, is unlikely to facilitate the smooth process of his identity formation. The parents should desist from such a debate and focus instead on improving their communication and their relationships with the children.
56. [The mother] made several oblique references to her fear that [the father] has abused [M]. The assessment did not find a pattern of behaviour by [the father] or behavioural indicators in [M]’s presentation or history to suggest that this is the case. It is likely that [M]’s issues are more related to his parent’s conflict and the negative focus on his various diagnoses. The cumulative effect of the parental conflict is likely to create a high level of anxiety in the children, especially in [M].
The assessment of M and the interaction between the M, J and the parties does not support the allegations made by the mother that the children have been abused by the father or have witnessed any abuse by their father of the mother.
Having considered all of the evidence the Court finds that the mother has not established that the father has sexually abused the mother or physically abused or emotionally abused the mother nor that the father has abused either of the children in any way. The evidence of the parties’ suggests that the children have been exposed to the ongoing conflict between their parents for a considerable number of years.
The evidence before the Court does not establish any need to protect either of the children from physical or psychological harm as a result of any risk of physical or psychological abuse by the father.
The mother maintained that the father neglected the children and did not attend to their medical or health needs appropriately.
The father denied that he had failed to attend to the children’s genuine medical or health needs. The father maintained that the mother had exaggerated the children’s emotional and physical problems. Whilst accepting that M had special learning needs and whilst he had arranged for M to receive extra tutoring assistance, the father did not accept that M was autistic. He maintained that the information given to medical professionals and other experts was incorrect or exaggerated. The father gave a different version of the observation of the children’s behaviour and explanation for the children’s behaviour which did not fit with the information provided to the medical and health professionals consulted by the mother.
The father maintained that one reason for this behaviour by the mother was in order to obtain extra financial assistance from government authorities based upon the children having a disability.
In her affidavit filed on 17 January 2012 commencing at paragraph 4.1 the mother sets out the history of her “Parental Care, Healthcare and Education Concerns”. Annexures include reports from various teachers, paediatricians, speech and occupational therapists and psychologists. In the affidavit the mother complains about what she describes as the father’s failure to attend to M’s health needs and health and developmental delay needs. The affidavit sets out serious allegations concerning M threatening to harm himself and J and concerns in relation to J including eyesight problems, bed wetting and nightmares.
The father in response denies any neglect or harm. He refers to his treatment of M when he injured himself playing karate. The father admits that when M is sick he benefits from asthma medication but does not believe that he otherwise requires treatment as an asthmatic.
The father complains about the number of medical and health professionals to which the mother has taken the children and from whom she sought reports. He does not accept the diagnosis of M as autistic. The father denied having heard M threaten to harm himself or to observe him destroying toys or behaving in the extreme way described by the mother.
When being interview by the Family Consultant issues concerning M and J’s mental health were raised by the mother.
These are summarised in part by the Family Consultant in the report at paragraphs 18, 19 and 23:
18. [The mother] has numerous concerns about [M]’s behavior (sic) and emotional well-being. She said that she is particularly worried that [M] is vulnerable to mental health problems. She said that [M] has, on occasions in 2007 and 2010, stolen knives and lighters from [the father]’s home to subsequently burn holes in items in her home such as a floor rug. [The mother] said that [M] is aggressive towards her and [J], using abusive language such as “Fuck off, leave me alone”. She believes that this behavior (sic) is directly related to the children watching violent games. [the father] believes [M] was depressed and suicidal during 2010.
19 [The mother] said she has ongoing fears that [M]’s low moods are du to having been abused in some way. [The mother] described [M] having recently demonstrated some inappropriate sexualised behaviour such as “Gyrating his hips and Prancing around, grabbing [J]’s toys Froggy and Honey bear and rubbing them on his [M’s] penis”. [The mother] believes that [M] needs psychological counselling.
…
23. [The mother] also has numerous concerns about [J]. She described him as a “nervous, and gets itchy when anxious”. She said that [J] still wets the bed frequently. [The mother] said that the family doctor advised her that the problem is emotional not physical. Apparently, according to [the mother], the family doctor also suggested that [J] required counselling and that [the father] would not agree to this. [The mother] also said that [M] is a bully to [J]
The father also gave information about his observations of the children which are summarised by the Family Consultant at paragraphs 26, 30, 31, 32:
26. [The father] does not have the same concerns about the children as does [the mother]. He said that [M]’s alleged oppositional behaviour, bedwetting and the rivalrous sibling behaviour “is not any problem” when the children are with him. He said that he manages the children easily and has, in fact, always been the more “hands on parent”. He is not concerned about [J]. [The father] believes that [the mother] has exaggerated difficulties or normal parenting to suggest that he is an abusive parent. He said that these exaggerations are his major concern regarding the children.
…
30. [The father] raised concerns about [the mother] seemingly exaggerating the children’s emotional and physical problems and he does not agree with the extent of problems that the mother says [M] has or the number of professional appointments for [M].
31. [The father] believes [M] has special needs related to learning. He said he recognises that [M] needs extra help with homework and school projects which he is prepared to give. [The father] noted that he had organised a tutor for [M] during 2011 which was of benefit to him. [The father] believes that, overall, [M] is relatively normal and not “autistic”. He described [M] as a well behaved child who knows how to take instructions, respects others and “does not have tantrums when he is not allowed to do what he wants”.”
32. [The father] said that the many assessments and labels on [M], in combination with the Court dispute and the parental conflict in general, are a greater source of stress on the children than issues related to his parenting or his relationship with the children. He believes that he is a good father.
After interviewing the children and observing the children briefly with the parents, paternal grandparents and Ms T the evaluation of the Family Consultant is set out in paragraphs 50, 51, 52 and 53:
50. That the parents differ markedly in facts as to their and the childrens (sic) lives suggests that one or either of the parents has a propensity to distort the actual nature of events. This would be experienced by the children as extremely stressful and predispose them to mental health and relationship difficulties now and into their adulthood.
51. [M], particularly, is at the centre of the great majority of his parent’s conflict. They disagree about almost every criteria related to his emotional, social, behavioural and academic development. [M]’s stress levels as suggested by his guarded behaviour, rigidity in relation to the parenting arrangements and the psychological and behavioural difficulties as outlined by [the mother], suggest that [M] is well aware and feels pressure of being at the centre of the dispute.
52. The parents are particularly polarized as to whether or not [M] has autism and other diagnoses such as oppositional defiance disorder. The parental conflict has, apparently, resulted in several clashes about how best to provide support or therapy for [M]. The number of assessors that [the mother] has sought for [M] suggests that she is adept at sourcing assessments and diagnosis. Parenting and behavioural advice may assist her to better manage [M] when he is with her rather than ongoing assessments. It is possible that the professional input towards [M] is more in the service of [the mother] needs and support rather than [M]’s needs.
53. [M]’s interviews, behaviour and the available developmental history did not appear to the family consultant as wholly consistent with the three symptom clusters of autism: impairments in social interaction; impairments in communication; and restricted interests and repetitive behaviour. However, as reported by the mother and noted in the subpoenaed material, his diagnosis of autism suggests that he will require a lifetime of a wide range of therapies and behaviour modification. He would benefit from strong, ongoing alliances between his parents, carers and professionals. Parenting arrangements that allow for predictable, organized (sic) arrangements, preferably living the majority of time in one parent’s home as a primary base with as few transitions as possible will most benefit [M].

Dr K is a consultant paediatrician. In the annexures to the affidavit (which was purported to be an affidavit of Dr K but signed by his secretary) there are various letters and reports. Annexure 1 is a document on the letterhead of Dr K’s practice stating that “I have diagnosed [M] as having Autistic Spectrum Disorder with aspects of oppositional defiance disorder using standard DSM4 criteria on the 8^th February 2010.”
Attached to the affidavit is a letter dated 23 March 2010 addressed “TO WHOM IT MAY CONCERN”. This refers to the evaluation of 8 February 2010 and it states:
This lad has autistic spectrum disorder. He is a very anxious and also very obsessional (sic). He started to develop very significant depression.
I believe that these factors are impinging significantly on [M]’s capacity to learn and maximise his academic potential. He will require very significant support both in the areas of his learning and also his emotional health”.
Similarly in a letter dated 1 September 2010 addressed “TO WHOM IT MAY CONCERN” the letter repeats the diagnosis of autistic spectrum disorder. It also states “[M] has very, very significant socialising difficulties as a result of his autism. He has no friends and feels very, very excluded”. The letter of 1 September 2010 continues to refer to M having “manifested extreme depression”, “experiencing suicidal thoughts” and recommended urgent referral to a psychologist. There is further correspondence of similar nature together with a longer letter of 19 February 2010 addressed to Dr N who had referred M for evaluation. This letter also refers to M’s alleged aggression and “oppositionality has also been noted when he is at school and when he is with his father”. It also states that M has “little eye contact with his parents”, and has “significant difficulties with socialising and also with his levels of anxiety”.
The affidavit also has annexed to it school counsellor’s reports, reports from meetings at school and correspondence and notes from other medical specialists.
When giving his oral evidence Dr K indicated that he took the information given to him by the mother “at face value” and said that he had no reason to doubt a single word of information the mother had given him. He also made it clear that he was not told by the mother that M enjoyed school and played with friends. He agreed that it was probably not correct to suggest that M’s autism was in a grave spectrum if he had been made vice captain of his sport’s house at school when in Year 6.
During that cross-examination Dr K also confirmed that he had not received any information from the father and that in ideal circumstances he would like to speak to both parents. Dr K confirmed that he did not speak to the teacher but relied upon the written information supplied to him. Further during cross-examination by the counsel for the Independent Children’s Lawyer, Dr K indicated that he had not spent any “one on one” time with M but had spoken to him during the interview with the mother where he appeared “fairly shy”. Dr K could not remember whether M’s brother J had been present during the interview.
Dr K confirmed that he had not prepared the report specifically for these proceedings but had prepared the letter of 23 March 2010 at the request of the mother. During cross-examination Dr K confirmed that he had not received any information other than that provided by the mother and the reports and letters which she provided. During this cross-examination Dr K also confirmed that on the spectrum of autism M’s condition could be described as moderate.
Dr K conceded that if the father’s observations of M were significantly different from the information provided by the mother this could impact on the diagnosis of autism. He called into doubt the diagnosis of autism. He had no objection to further consideration being given by a suitably qualified paediatrician to a review of the diagnosis.
The oral evidence given by Dr K, particularly his evidence when faced with the different background concerning M’s behaviour and the evidence of the Family Consultant Ms S, supports the father’s concerns about the diagnosis of M as autistic.
The father was supportive of further specialist assessments of M’s condition provided that he had a role to play in providing information concerning M.
The information concerning J and his need for counselling was also of concern particularly the information arising out of the cross-examination of the mother following the Independent Children’s Lawyer’s evidence concerning J. J’s behaviour appeared to be worse when in the care of the mother than when living in the more structured, less stressful household of the father.
Annexed to the mother’s affidavit and also in some of the exhibits received are particulars of numerous doctors, health professionals and specialists to whom the mother has taken M and J. The numerous appointments with different professionals is described in the submissions and by the Family Consultant as “chaotic”. The mother’s evidence was that she clearly believed that there was a reason for each appointment about which she was questioned. The mother did not accept the description as “chaotic” nor did she seem to appreciate the impact upon the children of the numerous appointments and assessments.
The father acknowledged that M in particular had shown signs of learning difficulties. He relied upon the evidence of Ms R who is providing tutoring and extra assistance in English and Maths for M and J on two occasions per week for one hour sessions on each occasion. Ms R is a qualified English Teacher with a Bachelor of Education from the University of Canberra. She has 15 years teaching experience. Her evidence and report suggests that with tutoring M has developed stability and more confidence in undertaking tasks associated with his schooling. Her evidence was that J had also developed and improved his attitude towards learning. The court accepts that Ms R is a friend of the father and his family but nonetheless her evidence was not significantly challenged in cross-examination.
The father’s partner Ms T supported the father’s observations concerning the behaviour of M and J.
Whilst the school reports clearly suggest that M in particular has some learning difficulties I accept the evidence of the father that with appropriate and full information being supplied by him he is willing to accept professional diagnosis and recommendations concerning the children’s health, development and education.
The Court cannot independently assess whether M has autism, or has in the past had significant difficulties associated with autism or whether the parties’ conflict, disputation and litigation has had an indirect but significant effect upon the children’s development.
It is necessary to consider the standard of care which has been, and will be provided by the parties. The mother’s behaviour during the trial and during cross-examination raised serious concern about her ability to approach the children’s development in a calm way focused on the best interests of the children rather than her perception of the father’s behaviour and her preoccupation with the disputes and conflict with the father.
At times during cross-examination the mother smiled and appeared to be amused when asked questions which were serious matters relevant to the children’s welfare.
At other times the mother appeared unable to answer simple questions. It was necessary to remind her to listen carefully to the question and to answer that question. Notwithstanding these reminders the mother’s answers were often rambling and unrelated to the question asked.
The mother asserts that the father is not suitable to provide care for the children because he has permitted the children to play violent electronic games and permitted them to access software which is inappropriate for their age. In particular she referred to the software game “Grand Theft Auto IV”. She was concerned that the children are therefore exposed to pornography and violence.
I accept that the children have had access to inappropriate electronic games in the father’s household. However, the father is now proposing an order which provides “that neither party shall permit the children to have access to any video game that “has an ESRB rating of Mature 17+ or higher”. (Paragraph 7 of the orders sought by the father as annexed to his application in a case filed on 30 January 2012).
Section 61DA requires the Court to apply a presumption that is in the best interests of the children for the parents to have equal shared parental responsibility. That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child or has engaged in family violence. As set out above the Court does not find that the father has engaged in family violence or that the father has abused either of the children.
Section 61DA(4) provides that the presumption is rebutted by evidence that satisfies the Court that it would not be in the best interests for the children’s parents to have equal shared parental responsibility. In this case the evidence of the parties themselves and the significant evidence of the Family Consultant establishes that the parents have in the past engaged in a “high conflict relationship”. There is an extreme level of mistrust by both parties of the other. The mother and father are unable to communicate in any civil fashion or discuss in a reasonable way matters concerning the children.
The evidence of the Family Consultant confirms that it is unlikely that the parents will be able to form an appropriate working relationship. I accept that the parents have an inability to confer and make appropriate joint decisions.
The Court is therefore satisfied that the evidence concerning the personalities of the parties and the conflict and mistrust that exists between them establishes that it is not in the best interests of the children for the parents to have equal shared parental responsibility.
Therefore, the provisions of section 65DAA do not apply. Even if they did apply it would not be in the children’s best interests to spend equal time with each of the parents nor would it be reasonably practicable for the children to spend equal time with each of the parents. The latter opinion is based upon the similar factors which influence this decision concerning the equal shared parental responsibility; namely, the ongoing conflict between the children’s parents, the lack of trust and the significant, different attitudes taken by the parents to the care to be provided for the children.
The evidence of the Family Consultant Ms S supported the arrangement whereby the children live primarily in one residence and spend one period of time in the other household with a limited number of changes to their arrangements. Ms S’s evidence supported the stability which would be provided to the children by remaining in one household for most of the time spending a reasonable period of time with the other parent in one week and less time in the second week.
In determining the bests interests of the children (which is the paramount consideration) the Court must consider the primary considerations which are the benefit to the children of having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2)).
As indicated above, the Court is satisfied that the evidence does not establish that there is a need to protect the children from any harm in the father’s care nor is there any risk of abuse or neglect in the father’s household. To the contrary, the father and his witnesses gave convincing evidence which established that the father will take appropriate care and make suitable arrangements for the children including any necessary assessment or treatment by professional health providers.
The evidence of the mother raised significant concerns about the mother’s ability to recognise the benefit to the children of having a meaningful relationship with the father. Her attitude towards the father and her inability to recognise the difficulties she created by her behaviour, suggest that she was more focused upon her control of her relationship with the father and the children’s relationship with the father than on the positive benefits for the children of the relationship between the children and the father.
The evidence of the mother about the questioning of the children and the inaccurate or exaggerated information she has provided to various people providing treatment or assessment of the children (in particular in relation to M’s development) raises concern about the mother’s behaviour. There is therefore a need to protect both children from psychological harm from being exposed to such behaviour.
The Court is required to consider any views expressed by the children and factors relevant to the weight that should be given to their views (section 60CC(3)(a)). The parents gave evidence which suggested that the children were either reluctant to spend time with the father or reluctant to be returned to the care of the mother. For reasons which I have given in relation to other factors, I prefer the evidence of the father and Ms T about the times the children have enjoyed spending with the father and their reluctance on occasions to return to the care of the mother.
The Family Consultant’s report indicated that M, when interviewed (at age twelve), talked of the father as being “fun”. Her report also indicated that M wanted the parenting arrangements to remain “just the same”. J (at aged eight years when interviewed) did not express any direct opinion about his living arrangements to the Family Consultant. Taking into account the high level of conflict between the children’s parents, the living arrangements in the past which have involved frequent changes and concerns about M’s developmental and psychological health the Court does not place any significant weight upon the views expressed by either of the children.
The nature of the relationship of the children with each of their parents and other persons such as Ms T and the attitude to the children and to the responsibilities of parenthood are necessary considerations (section 60CC(3)(b)(i).
The mother’s evidence was that while in her care the children were experiencing anxiety, bed wetting, sleeplessness and difficult behaviour which resulted in her taking M to frequent appointments for assessment. She was supported to a certain extent by the referrals she arranged or received from the school and others.
The children’s behaviour in the father’s care was more settled and calm and their relationship much more relaxed and affectionate.
The observations of the Family Consultant were that the children appeared “happily engaged together” and had “easy relaxed and affectionate relationships with each parent”. The Family Consultant also noted that the children appeared happy to spend time with their grandparents and Ms T and reported that “[t]hey related to them as if to caring adults that they know and love” (paragraph 48 of the Family Consultant’s report).
Section 60CC(3)(c) refers to the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. The mother’s evidence suggested that she was not able to encourage a close and continuing relationship between the children and the father. To the contrary she maintained her allegations of abuse and that he was not capable of caring for their medical or day to day health needs.
Section 60CC(3)(d) refers to the likely effect of any changes in the children’s circumstances including the likely effect on the children of any separation from either of the parents or any other child, or other person with whom he or she has been living.
The children have spent considerable time moving from one household to the other. I accept the evidence of the Family Consultant that a reduction in the number of changes between the two households would be a change which is likely to benefit the children. I also accept the Family Consultant’s evidence that a change from the primary household of the mother to the primary household of the father is likely to be beneficial for the children as it will reduce the impact of the mother’s negative influence.
There are no significant factors to be considered in relation to practical difficulty and expenses as referred to in section 60CC(3)(e).
Section 60CC(3)(f) requires the Court to consider the capacity of each of the children’s parents and any other person to provide for the needs of the child including emotional and intellectual needs. Section 60CC(3)(i) refers to the attitude to the child ad responsibilities of parenthood demonstrated by reach parent. The mother’s capacity to provide for the children’s emotional, intellectual and health needs is seriously reduced by her oppositional attitude towards the father. The inconsistent evidence and unusual behaviour of the mother when presenting her evidence and during cross-examination confirmed this negative attitude.
The father and Ms T present as having a better capacity to provide for the emotional, educational and intellectual needs of the children being more focused on the children’s needs than on the conflict between the mother and father.
The father’s attitude to his responsibilities and his demonstrated parenting were positive factors.
Section 60CC(3)(g) is not particularly relevant other than to consider the characteristics of the children which are relevant namely the apparent learning difficulties of M and the emotional and psychological difficulties of J. Considering the evidence of the parents and the Family Consultant the Court is satisfied that the father presents as the more appropriate parent to attend to the arrangements necessary to ascertain the children’s developmental needs, their psychological and emotional needs and what treatment or counselling is necessary and appropriate.
Section 60CC(3)(h) is not relevant.
The provisions of 60CC(3)(j) refer to any family violence involving the children or a member of the children’s family. As indicated the Court is not satisfied that there is sufficient evidence to establish family violence to the extent that it is in the best interests of the children that they do not live with the father primarily. The mother in her submissions maintained the allegations of family violence but did not seek to have any time the father spent with the children to be supervised in any way.
Section 60CC(3)(k) is not relevant.
Section 60CC(4) relates to whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings. It would usually be preferable to make an order that would make it less likely for further proceedings to be brought in relation to the children. The ongoing conflict between the children’s parents has already had a significant impact upon the children emotionally and psychologically. Further conflict and any further litigation is not likely to promote the best interests of the children. It is not possible however, to determine which particular order is likely to reduce the risk of further proceedings in this matter.
Section 60CC(3)(i) refers to the failure of a child’s parents to fulfil their responsibilities in making long term decisions, to participate in making long term decisions or spending time communicating with the children. It also requires consideration of the other parent participating in making decisions about long term issues in relation to the child and obligations to maintain the child. The father did not follow up with suggested recommendations for the treatment for M in particular. Taking into account however all of the evidence and considering the extent of the information that was not provided to the father by the mother his behaviour is sufficiently explained. The parents’ inability to co‑operate concerning the children’s welfare remains a significant factor.

Conclusion

The evidence during the trial including aspects of the mother’s evidence, during the trial support the findings maintained by the father’s counsel.
There is insufficient evidence to establish the mother’s claims concerning the father’s alleged abusive behaviour.
The evidence clearly indicated that the parties are unable to work cooperatively together and have stringent opposed views about the suitability of the other as a carer for the children.
The evidence also supports the Independent Children’s Lawyer’s submission that the level of stress in the mother’s household may be a significant factor in accounting for the unusual behaviour of the children from time to time (such as J pulling his hair out and the special needs of M being exacerbated).
The household of the father (including Ms T and Ms T’s son M) is capable of providing a secure supportive background for both children. I am satisfied that in the father’s care and following the directions of the children’s general practitioner their health and developmental needs will be met.
The evidence of the parties and in particular the inconsistent and unusual evidence given by the mother supports the concerns the father has about the mother’s capacity to provide for the children’s needs particularly their emotional and intellectual needs.
The evidence of Ms S the Family Consultant referred to the treatment, arrangements and appointments of the children made by the mother as “chaotic”. It is important that the doctors, counsellors and other professionals providing assistance to the children be properly organised. All those assisting the family should be made aware of the other assistance that has been obtained. That assistance should be properly coordinated in the future.
The father proposed that the medical treatment, counselling and assessments for the children be co-ordinated by the children’s general practitioner Dr S, or if Dr S is not available or willing to undertake the role then such other general practitioner instructed by the father.
The best interests of the children will be served by the father following the directions and advice of appropriately qualified professionals and authorising such professionals to keep the mother informed about the children’s health and development.
Requiring consultation between the mother and father is only likely to increase conflict and risk further litigation both of which are not in the children’s interests.
Taking into account the difficulties which the children have experienced in the past with the numerous handovers it is appropriate that there be an order made which would allow the children to spend time with the mother on a regular basis but that the arrangements do not require the children moving frequently between the parents who have very limited ability to communicate and co‑operate.
To reduce any conflict and to enable the children to adjust to the changes the orders will provide for a short time when the children will be in the father’s care without spending time with the mother.
For the above reasons the orders are considered to be in the best interests of the children, M and J.

I certify that the preceding one hundred and thirty six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 August 2012.

Associate:

Date: 29 August 2012

[2012] FamCA 728

29 August 2012

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness