COMELLA & LYMON

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMELLA & LYMON

[2020] FCCA 58

Catchwords:
FAMILY LAW – Children – presumption of equal shared parental responsibility not applied – effect of change in arrangements.

Legislation:

Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 65DAA, 121(a)(f)(i)

Applicant:

MR COMELLA

Respondent:

MS LYMON

File Number:

ADC 3093 of 2011

Judgment of:

Judge Cole

Hearing date:

27, 28 & 29 March 2019 & 10 July 2019

Date of Last Submission:

22 October 2019

Delivered at:

Adelaide

Delivered on:

21 January 2020

REPRESENTATION

Applicant:

The Applicant appearing in person

Counsel for the Respondent:

Mr Roberts

Solicitors for the Respondent:

Southern Community Justice Centre

Counsel for the Independent Children's Lawyer:

Mr Praolini

Solicitors for the Independent Children's Lawyer:

Legal Services Commission

ORDERS

That the Orders made on 20 June 2013 be hereby discharged.
That the child X born on 2012 live with the mother.
That the mother have sole parental responsibility in respect of the said child provided that:
(a)The mother will contact the father in writing in connection with the long-term issues to provide her views about any major long-term issues involving the child;
(b)The mother will consult and negotiate with the father about any such issue via written correspondence by post;
(c)The parties are to make a genuine effort to come to a joint decision about any such issues; and
(d)If no agreement is reached between the parties within fourteen (14) days the mother shall make the final decision and advise the father in writing by post of the decision about any such issue.
That the said child spend time with the father as follows:
(a)During the school term, each alternate weekend from the conclusion of school Friday until the commencement of school Monday (or the commencement of school Tuesday if Monday is a non-school day) commencing the first weekend of the 2020 school term;
(b)During the short term school holidays in 2020, the father’s time shall continue on alternate weeks save that for when time occurs on the first or second weekend of the holidays:
(i)For the first term holidays the father’s time will be extended to 10:00am Tuesday;
(ii)For the second term holidays the father’s time will be extended to 10:00am Wednesday; and
(iii)For the third term holidays the father’s time will be extended to 10:00am Thursday.
(c)Save and except for arrangements for Christmas Day, during the Christmas school holiday period commencing December 2020 as follows:
(i)From the conclusion of school Friday on the last week of term or in the event of it being a non-school day from 9:00am until 9:00am the following Wednesday being the first Wednesday of the school holiday period and each alternate weekend thereafter during the school holiday period save that the child will be returned to the mother for the weekend prior to the commencement of school.
(d)For half of the term school holidays commencing at the conclusion of first term in 2021, from the conclusion of school on the last day of school until 12:00pm on the second Saturday of that school holiday period commencing on the Friday that school concludes (and in the event of school concluding earlier from the Friday immediately following the conclusion of school);
(e)save as set out in respect of the arrangements for Christmas for half of the Christmas school holiday for a period of seven (7) nights from 3:30pm until 3:30pm on the following Friday of the school holiday period and each alternate week thereafter with handovers to take place on Friday at 3:30pm with such time commencing the Christmas school holidays in December 2021;
(f)At Christmas:
(i)in 2019 and each alternate year thereafter from 2:00pm Christmas Day until 2:00pm Boxing Day provided that the said child should spend time with the mother from 2:00pm Christmas Eve until 2:00pm Christmas Day 2019 and each alternate year thereafter; and
(ii)in 2020 and each alternate year thereafter from 2:00pm Christmas Eve until 2:00pm Christmas Day provided that the said child spend time with the mother from 2:00pm Christmas Day until 2:00pm Boxing Day in 2020 and each alternate year thereafter.
(g)In the event the said child’s birthday should fall on the day he is due to spend time with the mother, then the child shall spend time with the father as follows:
(i)If a weekday, from the conclusion of school (or 3:00pm if a non-school day) until 6:00pm; and
(ii)If a weekend day from 9:00am until 2:00pm.
(h)In the event the said child’s birthday should fall on a day he is due to spend time with the father, then the child shall return to the mother as follows:
(i)If a weekday, from the conclusion of school (or 3:00pm if a non-school day) until 6:00pm; and
(ii)If a weekend from 9:00am until 2:00pm.
(i)In the event that the father’s birthday should fall on a day that the said child is due to live with the mother, the said child shall spend time with father as follows:
(i)If a school day, from the conclusion of school until 6:00pm; and
(ii)If a non-school day from 9:00am until 5:00pm.
(j)In the event that the mother’s birthday should fall on a day that the said child is with the father, the child shall return to the mother’s care as follows:
(i)If a school day, from the conclusion of school until 6:00pm; and
(ii)if a non-school day, from 9:00am until 5:00pm.
(k)In the event that Father’s Day should fall on a day that the said child is due to live with the mother, then the child shall spend time with the father from 9:00am until 5:00pm on Father’s Day;
(l)In the event of Mother’s Day should fall on a day that the said child is due to spend time with father, then the child shall return to the mothers care from 9:00am until 5:00pm on Mother’s Day;
(m)Such further or other times as may be agreed between the parties in writing.
That in the event that either party is unable to care for the said child due to work, illness or for any other reason, the child should be placed into the care of the parent that is available to provide care;
That it is a condition of the said child’s time with the father during school holidays that the father is to arrange sufficient leave from work to care for the child;
That all handovers that do not occur at the said child’s school take place at Location B at Suburb A NOTING that each party and/or their agent is to immediately leave the handover location once the said child is in their respective vehicles.
That each party shall facilitate telephone communication between the said child and the other parent should the child express the wish to do so.
That the father shall comply with any dietary requirements regarding the said child with the mother to outline such requirements by written correspondence to the respondent by post and/or the AppClose mobile app.
That the father shall comply with any medical directions and treatments regarding the said child with the mother to outline such requirements by written correspondence to the respondent by post and/or the AppClose mobile app.
That each party shall inform the other as soon as is practicable of any medical emergency relating to the said child whilst he is in the parties’ respective care with the parties to communicate by appropriate SMS text message and shall provide full details with regard to the details of the treating doctors or allied health professionals.
That by virtue of this order each party is authorised to obtain any reports from the said child’s treating medical practitioners or other allied health professionals as may be requested by the parties including but not limited to information as to the child’s diagnoses, prognoses and/or treatments and that both parties shall keep the other informed at all times of the details of the child’s current medical practitioners or other allied health professionals NOTING that the mother is responsible for making appointments (other than routine general practitioner appointments in the event of illness) for the said child;
That each party be at liberty to obtain school reports, newsletters and photographs from the said child’s school at their own expense NOTING that both parents are at liberty to attend parent teacher interviews;
That the parties save as set out in these orders communicate with each other using the AppClose mobile telephone application or similar application as may be agreed with such communications to be confined solely to issues related to the care, welfare and development of the said child.
The parties take all steps necessary to enrol in and if eligible attend co-parenting counselling (NOTING any joint attendance is at the discretion of any counsellor).
That the parties are restrained and injunctions are hereby granted restraining them from:
(a)Discussing the within proceedings with the child, showing him any documents relating to these proceedings, or allowing any other person to do so;
(b)Denigrating the other in the presence of the said child or allowing any other person to do so.
(c)Subject to these orders from attending at the said child’s school whilst the child is in the care of the other party pursuant to these orders, or during the period the child is coming into the care of the other party pursuant to these orders;
That each party:
(a)Shall notify the other of any change to their residential address, email address or emergency contact telephone number within twenty-four (24) hours of such change NOTING that each party is to advise the other as soon as practicable prior to any change occurring.
(b)Is authorised to speak directly with any of the said child’s treating health professionals (at their discretion);
(c)Is authorised to receive copies of all educational correspondence (at the discretion of the school) including but not limited to reports, letters to parents, and newsletters and to communicate directly with the said child’s teachers and other education professionals.
(d)Is at liberty to provide a copy of these orders to any school, or treating health professional where the said child is attending or consulting and this order shall operate as authority for each party to receive information at the discretion of that organisation.
That the appointment of the Independent Children’s Lawyer be hereby discharged.
That the proceedings be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3093 of 2011

MR COMELLA

Applicant

And

MS LYMON

Respondent

REASONS FOR JUDGMENT

These proceedings concern the parties’ youngest child X born 2012.
X has two older siblings namely Y born on 2000 who turned 19 this year, and Z born on 2001, who turned 18 this year. Y and Z live with their father in Town C.
The three children were the subject of previous proceedings with final orders being made on 20 June 2013.
Those orders provided for Z and Y to live with their father and for X to live with the mother. Further orders were made in respect of the time the children were to spend with the non-resident parent.
Since the orders were made, the mother’s time with the two older children has been at best, fragmented and is now non-existent. Her relationship with Y and Z ranged from extremely fragile to non-existent.
In addition, the father’s time with X did not proceed according to his expectations and a number of applications were filed with this court, with the first application being filed on 1 September 2014.
The father recommenced spending time with X at the Children’s Contact Centre. The father’s time increased to commencing overnight time in November 2017 with further increases leading to the current arrangement whereby X spends alternate weekends with his father.
An Independent Children’s Lawyer was again appointed for the proceedings and two reports were obtained from family consultant, Ms D. The final report published on 24 September 2018 recommended that X be placed in the primary care of the father and spend alternate weekends with the mother from Friday night after school until the following Monday.

Background

The parties commenced cohabiting in September 1996. They married 1997 and separated when the mother left the matrimonial home with the children on 11 August 2011.
Y and Z commenced living with the father in or about January 2012. Y was 11 and Z was 10.
The 2013 proceedings took five days. The 2019 proceedings took four days with submissions concluding on 25 October 2019.

Orders sought

The father seeks orders that X live with him and spend time with the mother.
The mother seeks orders that X live with her and spend time with the father each alternate weekend during the school term with additional periods of time being spent over the school term and Christmas holidays. There are orders also sought in respect of special occasions.
The parties agree that orders are no longer sought in respect of Z and Y.

The evidence

The father relies on:
a)His trial affidavit filed on 2 August 2018; and
b)The affidavit of his partner Ms E filed on 2 August 2018.
The father and Ms E gave evidence and were cross-examined.
The mother relies on:
a)Her amended response filed on 13 March 2019;
b)Her trial affidavit filed on 14 November 2018;
c)Her further trial affidavit filed on 13 March 2019;
d)The Child Inclusive Memorandum to Court dated 13 March 2016;
e)The affidavit of Ms Tydeman the Independent Children’s Lawyer, annexing the report of Dr F dated the 28 August 2018;
f)And refers to the Family Reports of Ms D dated 29 March 2017 and 19 September 2018.
The mother, Ms G the Co-Principal of X’s school and Ms H the clinical psychologist on whom she has been attending the last eight years gave evidence and were cross-examined. Ms G did not file an affidavit. Ms H had provided a report.
The Child Inclusive Conference Memorandum to Court, the affidavit of Ms Tydeman the Independent children’s Lawyer annexing the report of Dr F and the Family Reports of Ms D were all admitted into evidence.
The subsequent report of the medical practitioner who attended upon the mother and X, along with the report of Ms H, the clinical psychologist, were admitted into evidence noting the father’s concerns that both practitioners were acting upon the instructions of the mother and were reliant upon her for information in respect of the parties’ relationship.

The father

The father’s evidence was that he now resided in Town C. He lives in a five bedroom house which he owns in equal shares with his mother.
He confirmed that Y was enrolled on a part-time basis at TAFE and Z was finishing year 12 at School I. He confirmed he had withdrawn the children from the Primary School J and moved them to Town C, further away from the mother. No consideration had been given to having the children attend a school closer to the mother’s residence.
His evidence was that he did not tell the mother when there was a school concert nor did he tell her if the children received an award. He expected the children to tell the mother. This was a common thing in respect of both parties. Both agreed they did not tell the other about school events or the achievements of the children with both having the view that it was up to the non-resident parent to gain that either from the school direct or from the school’s website or newsletter.
He agreed that both parties did not convey information to the other, choosing to leave it up to the other to access the website or school newsletter.
The father conceded that his relationship with X’s school broke down when the Deputy headmaster Mr K was transferred from the school.
He confirmed that Y had served an affidavit that he had filed in these proceedings on the mother. He denied that he had instructed her to do that. His evidence does not satisfactorily explain how she came into possession of the affidavit, how she knew it was relevant to the proceedings at the time or how she knew it had to be served on the mother. I am unable to accept his response.
In or about 2011/12 he advised that Z was diagnosed with attention deficit hyperactivity disorder (ADHD). He could not say whether the mother had been involved in the assessment. He had advised the mother by letter of the assessment.
His evidence is that Y has dyslexia and he considered both children may be on the autism spectrum.
He was therefore not surprised that X may be autistic because of the family ties. He did query the assessment because he did not think it was independent as it relied on information from the mother only, and the school paid for the report.
He was concerned that he and his children Y and Z were not included in the reports or the assessment. His evidence however was that he had never denied that X was autistic.
He conceded that Y had not spent time with her mother for some two to two and a half years. There is no dispute that time between Y and the mother prior to that had rarely occurred and that the relationship between the mother and daughter had broken down.
His attitude was that he had done his best. He had asked Y to spend time with the mother but from the moment she came to live with him he formed the view that you could not slap her on the backside and tell her to go. He had discussed the relationship with Y but had concluded there was nothing he was able to do. His evidence was he was unable to bribe or encourage Y, it didn’t matter what he did.
Once again, there was a strong sense from the father’s evidence that the responsibility for the relationship between the children in his care and their mother had passed to the children, and that this had occurred well prior to the conclusion of the last proceedings.
He did advise the Court that Z had gone to see his mother regularly up until he reached the age of 16 and a half. I am not convinced by his evidence.
The father confirmed that Z has had his own phone since he was aged 13. He then informed the Court that the children had a right to choose. He also noted that the mother had Z’s contact details and never bothered to contact him. He added that Z was now 6 foot 3 and could not be forced. His opinion appeared to be that the mother was reaping what she has sown by not making an effort and listening to the children.
His view was that the mother had done nothing and did not take responsibility. She did not respond to the children’s phone calls.
He had a clear conscience having tried to encourage the children to have a relationship with their mother. He conceded this had not occurred.
I note that he was unable to provide any example of any consequences that he imposed on the children for failing to see the mother in accordance with his wishes.
I also note his evidence that if X was placed in his care he would do more. It is notable however that prior to the receipt of his written closing submissions he had no proposal for X to spend time with the mother should he be successful. His evidence was that he had not thought about it and would not be qualified to propose any arrangement. Once again this sounded to me like an abdication of his responsibility.
In the Reasons for Judgment published in 2013 I noted that:
… it is appropriate to say at this stage of the judgment that I had difficulty with his position of appearing to hand responsibility for the current situation over to the children and their mother as being something they had to sort out between themselves.[1]
It is never appropriate for a parent to abdicate responsibility for the welfare of the children and for the role in assisting the children in their relationship with the other parent.[2]
While I acknowledge his submission that the children are of an age where their wishes need to be considered, that does not absolve him of the responsibility to encourage and facilitate a relationship between the children and their mother.[3]
[1] Comella & Lymon [2013] FCCA 529, 34.
[2] Ibid, 35.
[3] Ibid, 36.

I also noted:
In his summary and opinion, Dr L noted that:
(a) the mother has effectively become alienated from Y and Z over the past three or so months, to the point where they now no longer visit her at all and have reportedly ceased phone contact in the last week. Neither child showed any respect for the mother during the interview, nor interest in resolving issues between them that could lead to a normalised regime of regular time spent with the mother;
(b) the father presents as someone who has not been effective in getting the children to achieve this normalisation, and has clearly been unsuccessful in ensuring that these children maintain a positive and respectful attitude towards their mother.[4]
[4] Ibid, 31a and 31b.
Unfortunately, I found little in his evidence to suggest that there had been any change in his attitude or his ability to address this issue.
He confirmed he had not sought help for the children to assist them in addressing their relationship with their mother.
He was questioned in respect of X’s food intolerances. His response was that he agreed X had them. He did not accept that the symptoms reported by the mother had occurred when X was with him, such as diarrhoea or an upset tummy.
He repeated that he thought the mother had mental health issues and noted she has mental health workers that support her.
The husband’s evidence left me with the overwhelming sense that he considered all that happened, and in particular the poor state of the relationship between the two older children and their mother, was not his fault.
I should note that when talking of his relationship with the children and his support for them, it was clear that in the main; save for the children’s relationship with their mother, he was a committed father. His ability however to take responsibility for his part in the current situation was negligible.
The father did concede that X was sad to leave his care on weekends, however was happy to see his mum.
He also conceded that X does not ask to spend more time with the father.

Ms E

Ms E conceded she had no discussions with the mother for the last six years.
She is present for the time that X spends with his father for one day on each weekend he is there.
She works in the aged care industry from Monday until Friday.
She has three children with her eldest M being type I diabetic, N being coeliac with asthma, eczema and ADHD, and O having ADHD, and possibly being coeliac. The children see their father regularly.

Ms Lymon

The mother conceded she had no relationship with her older children Y and Z.
She had only recently obtained her son’s telephone number. He had stopped communicating with her some seven months ago and she was adamant she will not pressure him.
She will see the children from time to time at the handover for X.
Her evidence was that X struggled to cope with being a little boy. He had difficulties with his attention and had difficulties with mixing with people.
The evidence from the mother and Ms G supports a conclusion that she has worked hard with the school to put supports in place around X. They have taken a number of steps including when he started school, trialling him attending for half days only.
She had passed this information onto the father. She conceded however that she did not speak to the father.
She noted that she had passed information to the father through the court system in 2017 when X was five. The fact that this is seen as a form of communication is indicative of the problems the children of these parties face.
She had tried to interact with Y and Z’s school, School I, however this had resulted in her receiving a letter from the school lawyers telling her she was barred from entering the school grounds. She had tried to connect with the school website without success and she did not receive any school reports for the two older children.
She presented, as did the father, in a similar fashion to that which I saw in 2013. It was difficult to find anything but a deep mistrust for the father and a sense of being the victim.
Attempts to start time again with the children ended in arguments. Phone calls with the children and in particular Y when they occurred post 2013 sometimes ended in a shouting match. Moments of contact with the children (which occurred rarely) which could have been built upon were lost through miscommunication and mistrust of the other parent. Matters were not helped by the children receiving no firm instruction or guidance in respect of their relationship with their mother from their paternal support base.

Ms G

Ms G is the Co-Principal of the Primary School J.
She impressed me with her professional and child focused approach. Whilst acknowledging her duties as a principal she appeared to have the ability to acknowledge and allow for the individual needs of students such as X who were under her care. Her evidence was of assistance to the Court.
The father queried the school’s ability to cater for children with learning difficulties such as X. Her evidence canvassed amongst other things the availability of the National Disability Insurance Scheme (NDIS) for X, how the scheme was implemented in the school and her experience with children who have similar needs to X.
The father put to Ms G that X is well behind his age group when his academic ability is measured. This he submits, supports a conclusion that the school is unable to support X. Ms G did not accept this. I accept her evidence on this point.
The submission ignores the history of the issues that X has had to overcome and the efforts made by the mother and the school to help X transition into this environment.
The father alluded to difficulties he has had with Ms G in his interaction with the school. Ms G’ evidence however remained neutral and focused on the child entrusted to her care namely X.
The overall impression was that a lot of work had been done to ensure that X was settled at school and the efforts made by the school and the mother appeared to have worked.

The report writer

The report writer’s evidence was that she considered a change in the living arrangements was necessary to attempt to remove X from the intractable conflict that had consumed the parties for most of his life.
She was asked in the context of the history of this matter, including the seven plus years of litigation and the non-existent relationship between the mother and the two older children in the father’s care, whether she thought there would be less conflict if X lived with his father. She did not.
To be fair to the report writer she had not had the dubious distinction of viewing the mother and the father in court over a period of some seven years nor having previously sat with each of them through the previous five day trial.
She had a number of concerns about X including the number of doctors that he had attended upon. The most pressing concern however was the long history of conflict between the parents.
In her view, that conflict would have a deleterious effect on the child and contraindicated a shared care arrangement.
She was highly impressed by her observations of the child and his relationship with his father. The child’s interactions with the father, seeking proximity to the father during the observation and the interaction with his siblings were significant factors for her.
She conceded that the subsequent diagnosis of autism and its impact was significant (being received after her report).
She conceded she did not contact the school and not see any need to do so. At the same time, she had noted X’s absences from school as a matter of concern.
She could not see any reason to believe that the children have aligned themselves with their father. Y for example was sad at the loss of the relationship with her mother and appeared emotionally abandoned. This however in the time available did not appear to be explored.
She did not speak with Ms H, the mother’s psychologist.
She had not referred to anything external to corroborate the issues in respect of the mother’s mental health, save and except the report of Dr F.
She had not read the previous judgement in respect of these proceedings and I’m not convinced that she had the benefit of a full understanding of the history of this matter since these parties first came to court in or about 2012.
She considered that X should be put with the father if the mother cannot encourage a positive relationship. This is in spite of finding that in the context of all of the difficulties presented to the Court that the child had a very positive relationship with his father.
It is difficult to see any attempt to address the fact that on the father’s assumption of care for the two older children, their relationship with their mother diminished to the point where it is now barely existent in the case of Z and non-existent in the case of Y.
There was no apparent consideration of how the relationship between the mother and X would have any prospect of survival in a home where there resides the father, the paternal grandmother who I previously found had little or no time for the mother, the daughter Y who has no relationship with the mother, and her son Z whose relationship is non-existent at present.
I will refer to these issues later in my Reasons.

Ms H, the mother’s treating psychologist

Ms H provided the court with a written report and attendance for the purposes of cross-examination. Ms H’s evidence was accepted noting the father’s concerns. Her report is not an alternative family report. Her observation of the mother and X over the years are of interest and her evidence in respect of these observations is accepted with the caveat that she has not had any input from the father in recent years.
The father is critical of the fact that Ms H did not provide evidence of her qualifications.
I have difficulty accepting this submission. The evidence was that she had been practising as a clinical psychologist since 2011. She first consulted Ms Lymon on 6 July 2011.
She saw X as a tiny baby when he attended with his mother. As he got older he did not enter the consultation room and stayed outside with the secretary.
She last saw X some six weeks ago.
Over the course of her relationship with the mother she has had the opportunity to observe the behavioural difficulties of X and the fact that he was easily distressed and could have a meltdown. She had observed his emotional dysregulation or meltdowns on more than one occasion. Her primary role however was consulting with the mother.
She had formed a conclusion that the mother had post-traumatic stress disorder. This was coupled with anxiety and depression. She had been referred to Ms H following the motor vehicle accident involving the mother. In addition the mother had relayed her concerns about domestic abuse.
Her current diagnosis was that the mother was mentally as well as she had ever seen. When the symptoms of PTSD arise now, there is far less noticeable effect. This is notwithstanding that X was now spending more time with his father. They had worked on strategies for her to care for herself and these appeared to be working.
From her observations she had not considered there was any prospect of the mother having Munchausen syndrome. She is a mandated reporter and she would have reported it accordingly.
Her observations of the mother’s relationship with X was that of a loving, nurturing and supportive relationship. It certainly came within the definition of good enough parenting and the child appeared to have a secure attachment with his mother.
She has not over the years of her attendance upon the mother observed the flatness or listlessness referred to by the report writer. She queried whether the mother’s post-traumatic stress disorder had been triggered by the event of attendance on the report writer. I draw no conclusion from that.
The mother’s mental health is a lessening concern. She has been well for at least six to twelve months. The visits at the moment are on a maintenance or therapy basis as she considers the mother to be very psychologically well.
In answer to a question from Mr Comella she advised that she considered the mothers symptoms to be declining and if it continued on that pathway she may not need any therapy at all. At best she would need “top-up” therapy.
She agreed that she had not observed X with the father or with the two older siblings.
The father was critical of the fact that Ms H had been provided with a copy of the report of Ms D. There is no dispute that there is no order authorising the release of the report.
The father seeks that the mother be dealt with for the publication in breach of s.121 of the Family Law Act 1975 (Cth).
Counsel for the Independent Children’s Lawyer submits that the purpose of the publication appeared to be for the purpose of therapeutic assistance that the mother received from Ms H. The Family Law Act (supra) permits the dissemination of material to “a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training”…[5]
[5] Family Law Act 1975 (Cth), s.121(9)(f)(i).
In this matter, the mother was being treated by Ms H for her mental health issues. The mother was distressed by the report and provided a copy of that report to Ms H in her capacity as a treating psychologist.
Whilst it may have been better for the mother to have sought the leave of the Court, the provision in the circumstances of this case of the report, taking into account the recommendations in the report does not support a conclusion that there is a breach of the provisions of the Family Law Act (supra).
The submission of the Independent Children’s Lawyer is that the Court should consider Ms H’s evidence only as it relates to the mother’s mental health and understanding of her presentation. I accept that submission and would add, the fact that Ms H has had the opportunity to view the mother and X over the years of her relationship with the mother is significant.
Those observations however must be tempered with the fact that she has not met with the father, save for one occasion, and that all information in respect of the father arises from the self-reporting of her client.

The law

In considering what parenting orders I should make, I have had regard to the provisions of Part VII of the Family Law Act (supra).
Any parenting order I make must have the best interests of the child as the paramount consideration.
Section 60B of the Family Law Act (supra) sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC of the Act.
Section 60B(2) of the Family Law Act (supra) provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the 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)the 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 of the Family Law Act (supra) states that:
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 of the Family Law Act (supra) sets out how a court determines what is in the child’s best interests and points to a consideration of the matters set out in sub-ss.(2) and (3) (per s.60CC(1) of the Family Law Act (supra)).
Those matters that are relevant and weigh on my decision will be addressed in these Reasons.
Should I decide that there be equal shared parental responsibility then I must, pursuant to the provisions of s.65DAA of the Family Law Act (supra), consider whether in these circumstances this child should spend “equal time” or “substantial and significant time” with each of his parents. These considerations include whether such an order would be:
a)In the best interests of the child; and
b)Whether the child spending equal time with each of their parents is reasonably practicable (see s.65DAA(1)(a) and (b) of the Family Law Act (supra)).
I will refer to these matters later in these Reasons.

Section 60CC primary considerations

(2)(a) The benefit to the child having a meaningful relationship with both of the child’s parents

There is some controversy in respect of this topic.
In the midst of the conflict which prompted the report writer to make a recommendation for a change of primary care, her finding is that the child X has an excellent relationship with his father. The consultant spoke with approval of her observations of the child with the father. She referred to “the sense of fun and joy in the father’s play and interactions with X”.[6]
[6] Family Report dated 19 September 2018, 84.
She further noted “there was no sense that the child was fearful of his father, and he sat closely and remained in his embrace for some time also seeking comfort from him”.[7]
[7] Ibid 84.
The fact that X had been spending ongoing time with his father and the paternal family was acknowledged.
What was not addressed was how this occurred in the context of the father’s household where relationships between the mother and members of the father’s household were, to put it mildly, not good.
The mother’s relationship with the father was one of distrust and on the mother’s version of events, fear. On the father’s version of events it was one of frustration and mistrust.
The mother’s relationship with her daughter Y, who had been residing with the father since she was 11, was non-existent. Her relationship with her son Z was similar.
There was no evidence to suggest that her relationship with the paternal grandmother, which I commented on in my previous Judgment in this matter, had improved.
Each party tells the Court that they consider there is a benefit in X having a meaningful relationship with the other parent.
There are a number of concerns I have in respect of the mother and some of those are illustrated by the difficulties the father has had in having time with X, particularly when this round of proceedings first commenced.
The father also comes to this court with a legacy of concerns surrounding his ability to promote and maintain a meaningful relationship between the children and the other parent. The two older children who have been in his care since or about the conclusion of their primary school years, have little or no relationship with their mother. This has occurred on his watch.
I accept there is a benefit to X having a meaningful relationship with each of his parents. The difficulty is how this will occur, taking into account the parents’ relationship with each other.

Risk to the child of physical or psychological abuse or being exposed thereto

A number of concerns on this topic arose in the course of these proceedings.
The father submits that leaving X in the care of the mother exposes him to his mother’s ongoing distrust of the father, and potentially the world. I have difficulty with this as I consider the relationship between the parties to be equally dysfunctional.
The father notes that the evidence from Ms H, the mother’s “long-term psychologist” when addressing the mother’s mental health concerns including suffering PTSD, means that the road ahead may have highs and lows for the mother which could impact on X. There is no evidence on which to base any concerns about the “road ahead” for the mother.

It has been clear however that the mother has engaged support where required. The father in submissions raises the presence of support workers with the mother at a number of court appearances as a criticism. The mother’s willingness to engage in support however points to a person who is prepared to manage any issues she faces by seeking the appropriate help. I will refer to this again when considering the capacity of the parents for the emotional and intellectual needs of the child.
The father refers to the request of Ms D for a mental health assessment of the mother. This was then obtained from Dr F who was unable to find any evidence to support any diagnosis of the mother. She was not required for cross-examination and reference to the report was minimal. In addition there is the evidence of Ms H that the mother is in good shape in respect of her mental health.
The mother maintains her allegations of family violence during the parties’ relationship. It appears to be conceded however that the allegations are historical and whilst not retracting her concerns, were not pressed in any significant way during the hearing. They also did not feature in any significant way in the closing submissions.
There is agreement that X is too young for his view to be given any weight. The mother’s counsel rightly makes the point that his disabilities must also be brought to account in any of the observations that X has been subjected to.

Nature of relationship of child with parents and significant others

The mother concedes that X has a relationship with his father and his siblings that must be noted. Implicit in that, is that she has no criticism of the relationship between X and his father or his older siblings. No criticism is made of X’s relationship with the paternal grandmother or the father’s partner.
The report writer confirms that X has a good relationship with his father and his siblings, which is reflected in her observations of his interaction with them when she was in the process of preparing her reports in 2017 and 2018.
The father does not dispute that he has a good relationship with X.
The mother has a good relationship with X.
The father in his submissions in respect of this issue raises concerns about the mother’s alienating behaviour. I will refer to that when considering the capacity of the parents to provide for the needs of the child.
Neither party is confident in the other’s ability to promote their relationship with the child that is not in their care. It is noted however that in spite of all this, the family consultant commented in approving terms on the relationship between X and his father. That is, under the current circumstances with all of the concerns that exist, X is at present maintaining a good relationship with his father.

The extent to which each of the parents has taken the opportunity to participate in making decisions in relationship to the child

The father submits he has had to resort to following the court process to obtain information regarding X’s health and welfare. He has also had to seek the court’s assistance to spend time with his son.
This is conceded to some extent by the mother’s admission that she informed the father of any developments with X through the court process.
At the same time, the father concedes that he left it up to the two older children to inform the mother of any developments in their lives.
There is little or no evidence of the father keeping the mother informed of developments that would enable her to make decisions in relation to the children in his care or in any way to participate in matters with them, communicate with them, or spend time with them.
The Independent Children’s Lawyer notes that the mother has been responsible to date for all long-term decisions affecting X’s life.
He submits that both parties have sought to be involved in X’s life. The father has chosen from time to time to only be involved in X’s life on his terms, which have not always been in the best interests of X. This submission has some weight.
He further submits that because of the conflict that exists it has not always been possible for the mother to take an involvement in the older two children’s lives. I think it is more than that and the mother has had limited or no involvement in the older children’s lives since the children moved to reside with their father. I will comment further on this when considering the capacity of the parents to provide for the child.
Neither party seeks to press the issue of the extent to which each of the child’s parents has fulfilled, or failed to fulfil the parent’s obligations to maintain the child. It is acknowledged that the parents have been involved in child support review applications however the matter was taken no further than that.

The likely effect of any changes in the child’s circumstances

The change is proposed by the report writer to reduce the conflict that has existed between these parties since they separated.
At the same time, the report writer is not confident that the conflict will diminish. On the evidence before me I do not think it will.
The father seeks to promote a change of the living arrangements with X to move to reside with him. He submits that he will promote a relationship between the mother and X.
He does not address the fact that X will be residing in a house occupied by the paternal grandmother who has no relationship with the mother, and the two elder children who have had a limited relationship with their mother which has now completely disintegrated.
Even if he was to promote the mother’s relationship with X he would be doing so in an environment where I cannot be confident that the relationship would be supported by the paternal grandmother, Y, or Z.
In addition, there is the historical context of this matter in that the father has had the full-time care of the two older children since in or about 2011. The two older children’s relationship with their mother on his watch has come to nothing.
I have been unable to find anything in the father’s evidence that would provide some reassurance save for his assertions that he wanted the mother to have a relationship with the two older children. This is then coloured by his evidence that no consequences flowed from the children’s decision not to follow his wishes.
I have had the opportunity of observing the father over a number of years and I am not confident that he would be able to maintain any effort to promote the relationship between the mother and X.
I cannot lay all of the blame at the father’s feet. There has from time to time been small efforts made by one or the other party to do something constructive with the children. Unfortunately, due to the high level of conflict and the complete lack of trust, that small moment of conciliation has been extinguished on each occasion.
The parties have been incapable of doing something as simple as providing access to school information, each characterising it as the responsibility of the other.
At present X has a good relationship with both his mother and his father. Should circumstances change, I have every confidence that X’s relationship with his mother will follow the pathway of Y and Z. In other words, it will disintegrate.
The father raises concerns that once the court proceedings are over, the mother will revert to limiting his time with his son and his relationship will wither.
In the course of these proceedings I have observed the mother talk about and acknowledge the good relationship X has with his father and his siblings.
I consider that there is a greater prospect that X’s relationship with his father will survive if matters remain as they are, as opposed to X’s relationship with his mother surviving should X move to live with his father.
The father raises the mother’s ongoing PTSD and her ongoing treatment with Ms H in respect of this topic. These are matters that I consider go more to the capacity of the parents to provide for the needs of the child.
It should be noted in respect of this topic that if the father is successful then he has no plan other than to consult the experts in what he concedes may be a traumatic shift for X.
He also had no concrete plan about what time X should spend with his mother. This changed with the filing of his written submissions.
In addition as pointed out by counsel for the mother and the Independent Children’s Lawyer there is a strong prospect that X would be required to shift schools.
Counsel notes that X suffers from autism and a variety of eating allergies and intolerances.
His primary attachment is to his mother. He has difficulty in managing and adapting to change.
A change in circumstances of X moving to live with the father would have an impact on X’s ability to attend at the various therapists that he has accessed via NDIS because of the mother’s input. It would also separate him from his current community.
I am concerned that any change has not been prepared for by way of a plan to minimise any distress that may be caused to the child by the move, save for the assertion that experts would be consulted.
The change would separate X from his primary caregiver, placing him in a household of people that do not have a relationship with his mother, probably require a change of schools, probably require a change of his treating medical professionals (noting the father’s submissions), and risk the complete disintegration of his relationship with his mother.
Counsel for the Independent Children’s Lawyer submits that X will likely suffer dysregulation and have difficulty adjusting to a change of primary care. I accept that submission.
Counsel also notes the father now accepts X’s diagnosis of autism however his understanding of the condition is opaque. The evidence would suggest that the father has not experienced the meltdowns the mother has described. I note these have also been referred to by Ms H. The father’s submission that alternate therapists may need to be considered for X is also an indication of his level of understanding and suggests a lack of insight into the importance of the continuity of care.
The Independent Children’s Lawyer to his credit is not critical of the father’s apparent lack of understanding noting the difficulties he has encountered engaging with the child’s therapists and the limited time the child has spent in his care. He simply points to a lack of a sufficient understanding of X’s needs to manage him when he is in his primary care.
For the court to change X’s primary care it is submitted that it must be satisfied that the risk of emotional and psychological harm X would suffer in changing primary care would be offset by a reduction of risk of emotional and psychological harm in the mother’s care.
The risk, it is submitted, in the mother’s care relates primarily to exposure of X to conflict both directly and indirectly. The evidence indicates, and I accept this submission, that there is no likely abatement of the conflict between the parties whether X is in the primary care of the father or mother.
The evidence would support a conclusion that the damage that would be inflicted by the change would outweigh any benefit that X may receive by moving to live with his father.
Neither party has pressed in any significant way the practical difficulty and expense of the child spending time with and communicating with a parent.
The father submits that both parents live in the same state and requests that serious consideration, should X come to live with him, be given to allowing him to change X’s school. He also seeks changing the professional specialists. These submissions support my conclusion that the consequences of the change would not be in the child’s best interests.

The capacity of the parents and any other person to provide for the needs of the child

The father submits that he works full-time and has demonstrated he is able to balance the need to work and raise children as a sole parent since 2013 when the last trial concluded in having the primary care of the two eldest siblings.
I have already commented favourably on his parenting capacity, save and except as it extends to facilitating his children’s relationship with their mother, including his apparent lack of ability to maintain any control over that dialogue and process.
He refers to his evidence that his employer provides a flexible working hours policy and that he has access to both annual leave and long service leave with an option of working from home to assist in maintaining X’s “vast medical requirements”. I accept they are significant and remain concerned that the father, with his obligations to his work as well as his son, would not be able to meet them.
I was not referred to any evidence from the father’s employer in respect of his flexible working conditions.
The father raises concerns about the mother’s mental health and how this will or may impact upon X. I have already noted the mother’s attendance upon Ms H, Ms H’s opinion of the mother’s mental health, and the steps taken by the mother to obtain support and address the issues faced by her.
I also note the submissions of the mother’s counsel that the mother has steadfastly continued with her own therapy to address her PTSD and to be better equipped to parent X.
The evidence would suggest that she is in good health, and is proactive in managing any problems that may arise. Whilst there can be no guarantees about ongoing good mental health, there is no evidence that would support a conclusion that there may be issues to be faced by the mother in the future.
The evidence does not support the father’s submission that the mother fails to meet X’s needs. The evidence of the significant work undertaken by the mother with X’s school, is one of the matters that supports this conclusion
I accept the submission that the father appears to be ambivalent as to his role in the relationship between the two older children of the family and their mother. I accept that I can have no confidence that the father will be able to adequately provide for the relationship to be maintained between X and his mother, should X move to live with him.
In addition I would note that the mother has been primarily responsible for addressing X’s health issues since birth. The father in his submissions acknowledges the “vast medical requirements” of his son.
The reasons for the father’s lack of knowledge of his son’s medical needs lie in the history of conflict of this matter. Nevertheless, the point made by the Independent Children’s Lawyer that he would not be across all of X’s health issues should he come to live with him, is well made.

The maturity, sex, lifestyle and background of the child

Whilst the father initially had difficulty accepting there were issues with his son’s health, there does not appear to be any dispute that X was diagnosed with:
a)A dairy intolerance;
b)Fructose malabsorption;
c)Lactose intolerance; and
d)Autism spectrum disorder (ASD) with a severity level of two in 2018.
The mother’s evidence is that X sees a number of health professionals including:
a)Ms P of Q Psychologists;
b)Ms R of S Speech Therapists for speech pathology each alternate Friday from 8:15am until 8:45am;
c)T at U Physiotherapists for motor skills generally each Tuesday from 8:30am until 9:00am;
d)Ms V of S Speech Therapists for counselling approximately every three weeks; and
e)Dr W at the AA Medical Clinic as X’s general practitioner.
The letter written by Ms P in support of X’s application for NDIS funding referred to X’s autism and developmental delays in relation to his communication, physical movement and behaviour. X’s inflexible and rigid behaviour, related to his autism, prevents him from engaging in learning tasks and partaking in classroom activities along with his peers.
This is a child with significant needs. He has an established routine with his treating medical professionals. He requires a significant amount of support from his parents and the question of whether the father would be capable of maintaining his employment and meeting X’s needs remains unanswered.
I accept the mother has been attending to these commitments to date.

The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents

The father submits under this topic that the mother since X’s birth has been unwilling to include the father and X’s siblings into X’s life.
This contrasts with the mother’s evidence of her efforts to maintain a relationship with X’s older siblings and the father’s lack of assistance.
The father submits that he has acknowledged in his testimony the importance of X having both parents in his life and that he would ensure that X’s connection to his mother would not be lost. I have already commented that I have no confidence that this would occur.
The mother submits that while both parents have sought to do their best by their son, there remains significant hostility and suspicion between them which is not in the child’s best interests. The mother, it is submitted, in the last 12 to 18 months has sought not only to comply with the orders but has further agreed to appropriate extensions of care, special occasion time and the like for the father and X. I accept that submission.
There must however be a query in the Court’s mind, it is submitted, that the father is capable of reciprocating the same. I have already commented on that issue.

Family violence

The issue of family violence was addressed in part when considering the risk to the child of physical or psychological abuse or being exposed thereto. It is acknowledged that the concerns are historical and no reference has been made to any recent events. It is not a matter that was pressed in any significant way by the mother and is dismissed by the father with no reference to this issue by the Independent Children’s Lawyer.

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

I do not consider there is a perfect solution to this problem. Neither party was able to show any clear signs that the conflict was abating for them.
Both parties know that the best they can give their son is to stop the ongoing war between them. Both parties would tell the Court they would do anything for the children. I have however, a grave concern that they are incapable of giving up the conflict.
I note the father’s submission that he will continue to bring proceedings should the mother fail to comply with the orders that may be made. That is a matter for him.

Parental responsibility

This is not a matter where I consider it appropriate to apply the presumption of equal shared parental responsibility. The level of conflict between the parties, the prior allegations of family violence, and my concern that the parties had difficulty agreeing on whether the sun was up, all speak against requiring them to enter into genuine bona fide negotiations to reach a joint decision in respect of X.
This issue was addressed in the parties’ prior proceedings at paragraph 150 of the Reasons for Judgment. Much of the information that concerned me then, remains a matter for concern today. The parties’ inability to communicate and their inability to have any understanding of the other’s position remain almost the same.
I do not consider an order that equal shared parental responsibility would be in the best interests of the child and in fact consider it would be a trigger for ongoing issues. I accept the submissions made by the mother and by the Independent Children’s Lawyer in this respect.

Shared care

Looking at the history of this matter and the discussion of the issues presented during this trial, I have difficulty seeing how a shared care arrangement could possibly work.
The parties live some distance apart. The logistics of how a shared care arrangement would work was not laid out before me and there was at best, a vague reference to the parties agreeing on a school that was located halfway between them which did not assist.

In addition the parties agree that they are unable to agree on almost anything to do with their son. The level of conflict and mistrust is significant and in fact is so significant as to prompt the report writer to suggest a change of the parenting arrangements.
I do not accept that a change of the parenting arrangements would reduce the conflict. I have grave concerns that the conflict will in fact not reduce.
The evidence does not support a shared care arrangement and I would dismiss that application.

Conclusion

I have known these parties now the some eight years.
In spite of the concerns expressed in my May 2013 Judgment, the relationship between the older children in the father’s care and their mother disintegrated.
The current arrangements find the parents remain in conflict however X has a good relationship with both his mother and father.
I have no confidence that the father will be able to avoid the situation faced by Y and Z. Whilst I do not consider the mother to be blameless, I consider that with the father as the primary carer the mother’s relationship with X would disintegrate.
I have no confidence that should I order X move to live with his father that he will maintain a relationship with his mother. That view is supported, I consider, by the relationship of the other members of the father’s household with the mother including the paternal grandmother, Y and Z.
Even if the father took all of the correct steps, I still consider there is a grave risk that the efforts would be undermined by the other members of the household.
The Independent children’s Lawyer supports an increase in X’s time with his father. I accept that submission.
I have therefore allowed for a slight increase over the 2020 school year with further increase in 2021 meaning a move to an arrangement that will allow for X to spend more time with his paternal family.
I therefore make the orders as set out at the commencement of these Reasons.

I certify that the preceding two hundred and twenty-two (222) paragraphs are a true copy of the reasons for judgment of Judge Cole

Associate:

Date: 21 January 2020

[2020] FCCA 58

21 January 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies