Cornwall & Cornwall
[2022] FedCFamC1F 389
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cornwall & Cornwall [2022] FedCFamC1F 389
File number(s): CSC 1014 of 2020 Judgment of: TREE J Date of judgment: 1 June 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the final hearing of the matter could not proceed – Where interim parenting orders were sought by the parties – Consideration of risk of harm to children – Consideration of expert reports – Where the Court takes a risk averse approach to the sibling violence – Best interests principles – Where orders made splitting the children’s primary residence – Where mother is restrained from spending time and communicating with the youngest child – Where orders made for equal shared parental responsibility in relation to the oldest child and sole parental responsibility for the youngest child. Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA, 63C, 64D Cases cited: Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
Secretary of the Department of Health and Human Services & Ray (2010) FLC 93-457; [2010] FamCAFC 258
Division: Division 1 First Instance Number of paragraphs: 89 Date of hearing: 16 May 2022 Place: Cairns Counsel for the Applicant: Mr Fellows Solicitor for the Applicant: Miller Harris Lawyers The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Lehmann Featherstone Lawyers ORDERS
CSC 1014 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CORNWALL
Applicant
AND: MS CORNWALL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
1 JUNE 2022
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Parental responsibility
1.That the father have sole parental responsibility for the major long-term issues for the child Y, born 2013 (“Y”);
2.That the father and mother have equal shared parental responsibility for the major long- term issues for the child X, born 2009 (“X”);
3.For the purposes of Orders 1 and 2 major long-term issues means issues about the care, welfare and development of a child of a long-term nature and includes but is not limited to issues of that nature about:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health other than for minor day-to-day matters such as coughs and cold, scratches and bruising;
(d)the child’s name; and
(e)changes to a child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
4.For the purposes of Order 2, but especially in respect of the health and education of X (though not limited to those issues), the following protocol shall apply, save in the case of genuine emergency:
(a)Where a parent believes that it is necessary to make a decision, they shall give 7 days’ written notice of that intention and the reasons for that intention to the other parent.
(b)In the event that the parent’s intention is based upon advice received from a professional person such as (but not limited to) a doctor, psychologist, counsellor or school teacher then the content of that advice shall also be revealed and (if the advice is in writing) a copy of the advice provided at the same time as the written notice of intention is given.
(c)The other parent shall, within 4 days of receiving the written notice of intention, provide any written response they consider appropriate together with the reasons for that response.
(d)If it becomes impossible for the parents to reach a decision then there shall be liberty to apply on not less than 7 days’ notice in writing.
Living and spending time arrangements
5.That from the date of these orders:
(a)Y shall live with the applicant father.
(b)X shall live with the respondent mother.
6.Y shall not spend any time or have any communication with the mother.
7.Y and X shall spend such time together as may be agreed between the parents in writing and failing agreement:
(a)both of them together with the father from 1:00 pm to 6:00 pm each Saturday;
(b)with X to be changed over at the beginning and end of that time by the mother’s father Mr B at McDonalds Family Restaurant, Suburb C and specifically on the basis that the mother is not present at the changeover.
Restraints
8.The respondent mother is restrained, and an injunction issued restraining her from:
(a)communicating with Y by any means whatsoever including using X for the purposes of communicating with or conveying messages to Y.
(b)attending Y’s school, any school function at the school or elsewhere, or any sporting or training event for Y wherever that might be.
(c)communicating with any medical or allied health professional (including counsellor) or facility who or which might be treating or assisting Y.
(d)attending upon any medical or allied health professional (including counsellor) or facility who or which might be treating or assisting Y at that time.
(e)requesting or encouraging her father to do any of the things referred to in this Order 8.
(f)requesting or encouraging any other person to act as an agent for her to communicate with Y on her behalf.
9.The respondent mother is restrained, and an injunction issued restraining her from coming within 200 metres of the father’s residence at D Street, Suburb E.
Medical and schooling
10.Each parent shall inform the other parent as soon as reasonably practicable of any medical emergency (including hospitalisation) that relates to the child who lives with them.
11.The mother is to do all acts and things necessary to continue with X’s counselling and/or treatment with Dr F and Dr G until those persons refer X to another practitioner or inform the mother that ongoing counselling and/or treatment is no longer required.
12.Each parent shall be separately responsible for paying the fees and expenses for those medical or allied health practitioners that are treating the child that is presently living with them.
13.Each parent shall ensure that the other parent is kept regularly informed of the ongoing health and counselling of and for the child living with them.
14.Each parent shall facilitate the regular attendance at school of the child living with them and inform the other parent of any significant absences from school of the child living with them and the reason for those absences.
15.The mother have leave to publish to any treating psychologist or psychiatrist:
(a)the Family Reports of Ms H dated 29 July 2021, 11 August 2021 and 23 April 2022;
(b)the psychiatric report of Dr J dated 11 February 2022;
(c)these orders and the reasons for them.
Conduct of the parents
16.The father and mother shall:
(a)not denigrate the other parent or the other parent’s family or partner (if any) in the presence or hearing of the child living with them, and shall remove the child from the presence of others who may be doing so.
(b)respect the privacy of the other parent and not question the child living with them about the personal life of the other parent or the partner (if any) of the other parent, or allow a third party to do so.
(c)speak of the other parent respectfully and use their best endeavours to ensure other third parties do so in the presence or hearing of the children and if the children are present and this is occurring remove the children from that circumstance.
(d)not discuss with the children any issues in dispute between the parents, including but not limited to the care arrangements for the children with the children, or allow a third party to do so.
(e)not ask either child who they want to spend time with or live with.
Communication
17.The parents shall communicate with each other for the purposes of their obligations under these orders only by means of the Talking Parents Application.
Resumption of Trial Management Hearing
18.All parties have leave to seek to re-list the Trial Management Hearing on 7 days’ notice to each other party.
Publication
19.The Independent Children's Lawyer has leave to publish these orders and the reasons for them to the Department of Children, Youth Justice and Multicultural Affairs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cornwall & Cornwall has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
Although this matter was listed for a three day parenting and property trial commencing 16 May 2022, in the preceding week at a Trial Management Hearing, all parties agreed that, for reasons I shall shortly explain, the trial was not in fact then able to proceed. Rather, what was to have been the first day of trial would need to instead be a hearing to determine what further interim parenting orders should prevail in relation to the parties’ two children until the trial was ready to proceed. Accordingly, on 16 May 2022 I heard the parties’ competing interim proposals and reserved my decision. This is that decision and the reasons for it. Given the present complexity of the case, I have taken a little longer to reflect upon this matter than I ordinarily would have done.
BACKGROUND
Mr Cornwall (“the father”) was born in 1978, and hence is presently 44 years of age. He is a medical professional.
Ms Cornwall (“the mother”) was born in 1972, and hence is presently 49 years of age. She is a health professional.
The parties commenced their relationship in 2003, married in 2006 and finally separated in April 2018. There were two children born to the marriage, X born in 2009, and hence presently 12 years of age, and Y born in 2013, and hence presently 9 years of age.
It appears uncontroversial that both children have a number of medical diagnoses, although there may be some controversy as to precisely what they are. However for present purposes, it is sufficient to recite the father’s version as contained in his affidavit filed 29 April 2022. At paragraph 39 he said this in relation to X:
39.[X] has been diagnosed with autism spectrum disorder level 2, generalised anxiety disorder, major depressive disorder, ADHD combined inattentive and hyperactive type and developmental trauma. [X] has been taking fluoxetine for anxiety/depression and melatonin for a number of years, since being commenced on them by [Dr K], his previous paediatrician. In January, Dr [G], Psychiatrist, recommended trialling guanfacine for his aggressive behaviours, however [X] refused to take any more medication.
Later at paragraphs 52 and 56 he said this in relation to Y:
52.[Y] has been diagnosed with generalised anxiety disorder, major depressive disorder, developmental trauma and sleep wake disorder. Following the recommendation of [Dr G], Psychiatrist on 11 January 2022, he was commenced on antidepressants for his anxiety and depression and melatonin for his sleep issues. He has changed antidepressants in order to minimise side effects, and is currently taking fluvoxamine. [Y] also has vision issues and has commenced using specialised glasses.
…
56.[Y] has recently been assessed for autism and the determination was that he had some autism traits but did not meet the diagnostic criteria for having ASD. [Dr G] has said to me, that this could be learned behaviour, could be autism with masking, or could be his anxiety as to the events of recent years that he should be reassessed in a year’s time.
Both parents have been assessed by Dr J, a psychiatrist, for the purposes of these proceedings. In relation to the father in her report dated 18 November 2021, Dr J concluded that he “would not meet … DSM-5 criteria [for] any serious mental illness, personality or substance use disorder”. Later she said that he was “assessed as having full capacity in respect to legal, financial and medical matters”.
In relation to the mother, in her report dated 11 February 2022, Dr J’s diagnosis was that:
[Her] history, collateral information, presentation and reported subjective experiences was not always in keeping with objective assessment and psychometric testing. I am of the opinion that [the mother] would meet the International Classification of Diseases (ICD-11) criteria for complex Post traumatic stress disorder, currently in remission [and] … DSM-5 criteria for borderline personality disorder.
Turning to the risk associated with the mother, she said:
Her risk to self and others was assessed as increased in comparison to her peers but not to the extent that she would require inpatient admission under the mental health act.
Her condition would escalate her potential risk of physical and psychological harm to her children when the children are in her care and will potentially negatively impact upon her parental capacity.
She made the following recommendations in relation to the mother:
[The mother] will benefit from holistic multidisciplinary mental health care and interventions. She will require biological management with an appropriate dose and possibly augmentation or combination antidepressant medication to address her significant mental health symptomatology.
The gold standard for treatment for personality disorders is psychotherapy, specifically dialectic behaviour therapy-based intervention. Both individual and group psychotherapy are effective if the patient if motivated to change.
Typically, personality disorders are not very responsive to psychotropic medications, although some medications can effectively target specific symptoms (e.g., depression and anxiety).
…
[The mother] will benefit from having regular access to her children, but this needs to be in a safe, nurturing, and positive environment. I would not recommend that she has more than 24 hours per week care of her children. This can be evaluated and slowly increased depending upon her mental health stability.
By the time Dr J’s report was released, there had already been a primary Family Report prepared by Ms H dated 29 July 2021 and an addendum report dated 11 August 2021. However the report of Dr J necessitated an updated Family Report, which is dated 23 April 2022. Whilst I will need to consider that report in some detail later, Ms H concluded that the mother’s diagnosis of borderline personality disorder “is a significant risk factor”. She concluded that “[t]he mother having any unsupervised with the children before she has addressed her issues as a serious risk factor”. She recommended that there be an immediate notification to the Department of Child Safety, and for the mother to consult a psychiatrist with a view to developing a treatment plan consistent with Dr J’s recommendations.
As to the appropriate parenting arrangements, Ms H recommended that the father has parental responsibility for both children, who would live with him, but neither spend time nor communicate with the mother whatsoever, until she had taken steps to “address her issues”.
I shall need to later revisit problems which X’s behaviour have generated post-separation, but for present purposes it is suffice to say that he has regularly, in a variety of settings, threatened or engaged in serious violence towards others, including his school principal, a teacher aide, a psychologist, Ms H, and perhaps more worryingly, the father and Y. Indeed X’s behaviour has in recent months become so extreme that although the father at one point had the primary care of both children, he formed the view that the risk to Y from X was so great that the children needed to be split. Accordingly X went to live with the mother, and Y remained living with the father. That remained the situation at the time of the hearing before me.
However in light of Dr J’s report pertaining to the mother, and the updated Family Report of Ms H, and some comments made by the Independent Children's Lawyer, in his affidavit filed 29 April 2022, the father indicated that the final orders which he will seek at trial are that X be placed in foster care, whilst Y live with him. Of course, the Federal Circuit and Family Court of Australia (Division 1) has no power to make such an order pertaining to foster care, and thus on 29 April 2022 I made an order directing the Independent Children's Lawyer to give notice of the then imminent trial to the Department of Children, Youth Justice and Multicultural Affairs (“the Department”), and to ask whether it intended to intervene in these proceedings. By email of 9 May 2022, the Department advised the Independent Children's Lawyer that it had “recorded the information as a child protection notification which will result in an investigation”. However “the update from the Department is there [is] an outstanding investigation that is yet to be commenced. Until this is commenced, the department would not be intervening”.
Given the lack of clarity about whether or not the Department would be likely to intervene, or to commence proceedings in the State Courts in relation to one or both of the children, it was agreed that the trial could not sensibly proceed, particularly given that the principal outcome contended for by the father, and perhaps also the Independent Children's Lawyer, was one that was at least presently beyond the power of the Court to make.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
In Goode and Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined as follows:
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82.In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Salah & Salah (2016) FLC 93-713 the Full Court at [37]–[41] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:
37.It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
68.… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.
38.In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:
18.… that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
39.The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
40.In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
100.… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
41.The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or "conjecture") and not to "simply ignore an assertion because its accuracy has been put in issue".
(Citation omitted)
THE PARTIES’ COMPETING PROPOSALS
Given their marked differences, it is convenient to discuss the parties’ competing proposals by reference to the several concepts within them.
As to parental responsibility, the father proposed that he have sole parental responsibility for Y, but the parties have equal shared parental responsibility for X. The mother proposed that she and the father have equal shared parental responsibility for both children. The Independent Children's Lawyer proposed that the father have sole parental responsibility for both children.
The father proposes on an interim basis that Y should live with him, but X should live with the mother. The mother proposes that X should live with her and Y should live week about between the parties. The Independent Children's Lawyer proposed that both children live with the father.
As to the children’s communication with the parent with whom they are not residing, the father proposed that Y not spend any time or communicate with the mother, and that Y and X both spend five hours with him (hence together) each Saturday. He proposed no other communication regime between himself and X.
The mother proposed that X would spend time with the father in conjunction with Y each alternate weekend, save that it appears as though that would only commence “when [X] feels safe, and in consultation with [X’s] health professional(s), specifically including [X’s] counsellor, [Dr F], from [L Services]”. She further proposed a regime of communication between the children and the parent whom they are not spending time with, seemingly as frequently and for such duration as the children may desire.
The Independent Children's Lawyer proposed that the mother have no contact or communication of any kind with either of the children.
The father also proposed that both parties be required to comply with the family report recommendations, including the mother consulting a psychiatrist. The mother ultimately appeared to be content with some such order, but the detail of what she was agreeable to was far from easy to discern.
For her part, the mother sought orders requiring both parties to engage in counselling and for the children to continue to seek therapeutic assistance. This suite of orders was not addressed by any other party.
The Independent Children's Lawyer proposed that there be an order under s 64D(2) of the Family Law Act 1975 (Cth) (“the Act”) prohibiting the parties from varying the interim orders without the Court’s assent. That proposal was not addressed by either the mother or the father.
AGREED OR UNCONTROVERSIAL FACTS
There appears to be little that is agreed, and much that is controversial in this case. However, the following appear to at least be common ground:
(a)Both X and Y have significant psychiatric issues and diagnoses which affect many, if not all, domains, and impact upon their daily functioning;
(b)The mother has, at least, complex PTSD in remission;
(c)X has on many occasions threatened, or perpetrated acts of violence against numerous people. He has expressed a desire to inflict pain and suffering on peers and adults alike. He has attacked the father on several occasions to the point where the father has now moved all sharp knives in his house out of X’s reach. X has attempted to choke and drown Y, perhaps with lethal intent. The father seems to contend that the cause of all this is the mother’s lack of boundaries for X, who has learnt that to get his own way he simply needs to threaten, and if needs be perpetrate, violence. For her part, the mother may not accept that X’s threats or actions are truly intended by him, and in any event certainly appears to blame the father for X’s behaviour whilst in the father’s care, as she says that X does not feel safe during those times;
(d)X is not presently attending school for any meaningful length of time, seemingly at most 30 minutes a day. The mother says that this is improving, but plainly it depends upon X’s wishes rather than any control being asserted over him;
(e)Y is presently attending school, although in the past he has had difficulty maintaining his schooling;
(f)X is presently living with the mother and has little, if any, communication with the father, and rebuffs the father’s attempts to speak with him;
(g)Y is presently living with the father and has some time and communication with the mother, although the extent of it appears unclear and not agreed.
ISSUES IN DISPUTE
Plainly on a superficial level, the primary issues in dispute between the parties relate to parental responsibility, with whom the children should live, and what arrangements there should be for the children spending time and communicating with the parent, with whom they do not primarily reside, and each other.
However underpinning these lies an assessment of the risk which the mother poses to both children, and X poses to others, particularly Y. Also, although perhaps not of as great significance, given that the interim orders I will make are intended to apply only for a limited period of time, there are issues as to whether the children would benefit from a meaningful relationship with the parent with whom they are not residing, and if so how it might best be safely facilitated, and further, whether the children would benefit from a meaningful relationship with each other, and again how that might best be safely facilitated. It appears that all of these matters are contentious.
SECTION 60CC CONSIDERATIONS
It can be seen that this case will be determined by both primary considerations established by s 60CC(2) of the Act together with the additional considerations established by ss 60CC(3)(b)(ii), (d), (f) and (j). The Independent Children's Lawyer’s proposal also brings into focus s 60CC(3)(m) as I shall later explain.
The need to protect the children from family violence
This case, at least on an interim basis, does not to any significant degree fall to be determined by violence either between the parties, or inflicted by a party upon either child. Certainly there are such allegations in the background, including some disputed claims that the mother, and perhaps the father too, have at times resorted to corporal punishment of one or both of the children. However that does not presently appear to be a significant matter, but rather prominent in the foreground is the violence of X.
The father’s affidavit is replete with examples of X’s out of control behaviour when in his care, both directed towards the father and Y. Moreover, it is part of a broader theme of violence and threats of violence perpetrated by X to others. Understandably, when X is acting out in a violent way, the father seeks primarily to protect Y, for instance by placing himself between X and Y, or having Y lock himself in his bedroom. However equally understandably, Y nonetheless becomes distressed at the altercation between the father and X, and the father’s attempts to involve police to resolve the situation (thus far, with no apparent success).
Necessarily the Court will need to take a risk averse approach to the very troubling sibling violence. One means of doing so would be to split the siblings and not have them spend any time with each other, although no party proposes that, as both parents appear to acknowledge that the children should have some ongoing relationship, albeit according to the father, restricted to hours, rather than days, of time together.
It is also argued by the father and the Independent Children's Lawyer that there is a need to protect both children from the risks which the mother poses to them arising from her contended personality disorder and other difficulties. However such risks do not presently seem to be in the realm of family violence, or other physical or psychological harm, but relate more to the mother’s inability to control X (for instance his poor educational situation) and her inclination, according to at least some of the witnesses, to undermine the father’s relationship with the child or children then in his care. I will address those matters under s 60CC(3)(f).
Benefit of meaningful relationship with the other parent
As I have said, the common theme amongst the reports of both Ms H and Dr J is the risk which the mother poses to the children arising from her alleged personality disorder and/or psychiatric issues for long as they remain untreated. It is contended that until treatment has reduced that risk, those risks outweigh any benefits the children might obtain from a meaningful relationship with the mother.
I think it may be fairly said that the mother concedes that she has PTSD (in remission) as a consequence of childhood trauma, but is probably unaccepting of Dr J’s diagnosis of a borderline personality disorder. Although the father suggests that I should order the mother to seek treatment as Dr J recommends, the utility of doing so, absent the mother’s acknowledgment of a problem, seems dubious, even if it were made a condition of any parenting order in her favour. Indeed in discussion with the mother during the course of the hearing, it became plain that such an order would likely create more problems than it would solve.
Whilst they are untested, and may well be ultimately challenged by other evidence, nonetheless the present expert reports raise prospects of risk that are approaching grave. Necessarily as the experts opine, those risks call into question the benefits which a meaningful relationship with their untreated mother would afford the children.
Otherwise, it appears not in dispute that both children would benefit from a meaningful relationship with both of their parents.
Benefit of children’s relationship with each other
It seems fairly clear that, apart from the risk of threatened and actual violence by X towards Y, the children would benefit from a relationship with each other. However the emphasis must be upon that relationship being experienced safely. One way in which that safety might be achieved is by restricting the amount of time the children spend together, and requiring the relevant parent to vigilantly maintain supervision of X during such time.
Likely effect of changes in child’s circumstances
There have been many changes in the post separation living arrangements of these children. Plainly it would be desirable to minimise the number and extant of any further disruptions. The Independent Children's Lawyer proposes that X be removed from the mother’s care, with whom he has been now for over a month, and placed with the father. The father says that if that were to occur, he would need some time to organise his situation, and the news of the change would need to be broken to X. X is likely, it seems, to react extremely adversely to that change, and to be fiercely resistant to any move back into the father’s care. Given his history, at the very least he is likely to make threats of violence to either himself or others, and at worst, is likely to act upon those threats and give effect to them, perhaps with lethal intent. That would be, according to Ms H and the father, consistent with the strategy which he has realised works for him when he opposes doing to what others are asking him to do. The voluminous material provides many examples of that.
More, as I shall explain later, the Independent Children's Lawyer’s proposal really is predicated upon the acknowledgment that the father will be unable to properly care for both X and Y, and hence will need to relinquish the care of X to the Department. Whilst that is of course still conjecture, it is strongly informed by the fact that the father himself does not seek an order for X to come into his care, for the very reason that he does not believe that he can maintain Y’s safety. Indeed, recent history is replete with examples of the father not being able to protect Y from X’s angry and violent outbursts, and it is probably approaching fanciful to suggest that anything has changed, or that the situation may not be considerably worse when X appreciates his wishes have been thwarted.
True it is that if the father relinquished the care of X to the Department, Y would be thereafter safe, but I must also consider it from X’s perspective, in that he would have yet another, and in this case dramatic, change in his living arrangements, and indeed may well be placed with a sequence of foster carers in a variety of homes. I am afraid I cannot see, in the short term, any real direct benefit to X from those upheavals being visited upon him.
As to Y, he is presently spending little time with the mother. The effects of causing him to spend a week per fortnight with her and X are unknown, but likely to be adverse, and perhaps significantly so, especially if either X was again violent to him, or the mother seeks to undermine Y’s relationship with the father.
On the other hand, the Independent Children's Lawyer’s and father’s proposals see no time and communication between Y and the mother for an indefinite period. He is likely to experience some distress, and perhaps grief and loss, if that were to be ordered.
Capacity of parents to provide for the children
The mother contends that the father does not have the capacity to properly care for X, because he does not adapt his parenting style to X’s special needs. The father denies that.
The father, Dr J and Ms H says that the mother does not have the capacity to provide for either child, and point to X’s loss of a relationship with his father, and his poor school attendance, to say nothing of his repeated threats and acts of violence, to demonstrate that.
In her Family Report of 23 April 2022 at paragraph 82, Ms H said:
From this assessment, the mother has been unable to maintain boundaries, made inappropriate comments to the children and undermined their important relationships. In my opinion, if they were returned to live with her now ([X] with her and [Y] “week about” as the mother suggests), then the children will likely reject their father as well. She will certainly undermine the father’s future attempts to encourage independent growth and development for the boys to reach their full potential.
Of course those living arrangements are precisely those which the mother still proposes before me on an interim basis. True it is that Ms H’s opinion may well be challenged by the mother, and certainly I could not make a finding of fact in those terms at present, but it is the risk which that opinion emphasises to which I must have regard. The authorities I have earlier referred to make it plain that, merely because it is contested, I cannot ignore it.
Of course both Dr J and Ms H are of the view that the mother’s alleged incapacity poses a risk not just to Y, but to X as well, at least for so long as she does not have the benefit of appropriate treatment for her contended disorder. However it appears that it might more be a medium term risk, rather than one which would necessarily compel the immediate removal of X from her care or presence on an interim basis.
Indeed it has to be said that despite whatever might be her failings, the mother nonetheless actually is presently parenting X. I accept it is likely sub-optimally, in that he is not attending school, has no relationship of any moment with his father, and probably has little contact with Y, but nonetheless she is, in some form, providing for him.
Other relevant facts and circumstances
I have already noted that the Independent Children's Lawyer proposes that X go into the father’s care, expressly acknowledging that will likely fail, and hence will necessitate the father relinquishing the care of X to the Department. Bluntly, the Independent Children's Lawyer recognises that the current Departmental investigation is unlikely to result in it taking any action, whether by intervening in these proceedings, or commencing proceedings in the Children’s Court. That is because X is living with his mother, and whilst that may be far from ideal, she is an available parent, and he is not at a direct risk of immediate harm in her care. Likewise Y is in the father’s care and not at risk of harm, even if he were to spend limited amounts of time with his brother on weekends. Hence given the obviously excessive case load of the Department – which is doubtless replete with the children at immediate and direct risk of harm in their parents’ care – it may not see fit to devote scant resources to this case. Hence the course the Independent Children's Lawyer proposes is designed to force Departmental intervention by having the parent with sole parental responsibility for X relinquish his care to the Department.
In opposing that course, counsel for the father described that as “weaponising” X, and to an extent that is correct. That said, of course there may be many benefits in X having a period in stable foster care, in that it would enable him to live in a regulated environment, where boundaries are imposed upon him and his actions have consequences, but not with any risk to Y. Of course the long term goal would be to nonetheless return X to one, or both, of his parents’ care.
I have to confess to some conflicting thoughts about the Independent Children's Lawyer’s proposal. On the one hand, it sensibly seeks to bring forward what appears to be a potential outcome of a trial, albeit even then, probably only by way of interim orders. If that were to occur only after a trial, then the consequence would be the further prolongation of this litigation, and the children’s enmeshment in it. To that extent the Independent Children's Lawyer’s proposal has considerable attraction.
On the other hand, the Independent Children's Lawyer’s proposal seeks to force the Department to deploy resources which it otherwise might not choose to do. Notwithstanding my considerable reservation about its correctness, for so long as it remains good law, the Full Court’s decision in Secretary of the Department of Health and Human Services & Ray (2010) FLC 93-457 is binding on me, and precludes me from joining the Department as a party to these proceedings absent its consent, or to make an order investing it with parental responsibility for X. And yet, albeit via a backdoor, that is precisely the intention and likely effect of putting X into the father’s care.
PARENTAL RESPONSIBILITY
There are reasonable grounds to believe that there was family violence between the parties, and hence the presumption of equal shared parental responsibility does not apply. Even if it did, I am not persuaded that it should apply in these interim proceedings (s 61DA(3) of the Act).
Both the father and the Independent Children's Lawyer propose that the father should have sole parental responsibility for Y. The mother proposes that she and the father should have equal shared parental responsibility for him. There is no suggestion that the father has any deficits in decision making about the children, other than that in the past he has too readily capitulated to the mother’s demands. On the other hand, albeit untested, there is much criticism made of the mother’s parenting approach by the expert evidence. Moreover, the parties have a long history of conflict and poor joint decision making. I am satisfied that it would be in Y’s best interests for the father to have sole decision making in respect of him on an interim basis.
As to X, both the father and the mother seek equal shared parental responsibility albeit probably for very different reasons, whereas the Independent Children's Lawyer proposes the father have sole parental responsibility for X.
Obviously there would be a considerable practical difficulty in the father having sole parental responsibility for X if he were living with the mother. In candour, the father says in that situation he should have equal shared parental responsibility, not because he is likely to in fact be able to reach any joint decision with the mother, but because it will give him a demonstrable right to speak with X’s therapists, medical practitioners, teachers and the like.
As shall be seen, I do not propose to move X’s care to the father. It therefore follows that sole parental responsibility as sought by the Independent Children's Lawyer could not be in his best interests. However, particularly given that the mother also seeks equal shared parental responsibility with the father for X, I am satisfied that such would be in X’s best interests and will so order. My somewhat unsatisfactory reason for so concluding is that it can do no harm, and may unexpectedly do some good.
WITH WHOM SHOULD THE CHILDREN LIVE
The father and Independent Children's Lawyer propose that Y should live exclusively with the father, whereas the mother suggests that he should spend week about between the parties.
At present Y is not spending anything like a week per fortnight with the mother, or indeed his brother.
There are two significant factors at play here. The first is the risk which the mother poses to Y if, as Ms H predicted in April of this year, she promotes his rejection of the father, as X has now seemingly done. This is a concern independently raised by the father in his trial affidavit.
The second is the risk of physical violence being visited upon Y when spending time in the mother’s household, assuming X is also there. Whilst it is true that there does not appear to be much history of violence between the children when both have been in the mother’s care, the gravity of the potential harm, were violence to erupt, is of great concern.
I am well satisfied that, at least in the interim, it is in Y’s best interests to live primarily with the father.
However it is X who is very much the focus of these proceedings. Inevitably that is because he poses a risk, as perpetrator rather than victim, of violence. In that sense, this case is quite remarkable.
Ironically the father and mother both agree that X should primarily live with the mother. It is the Independent Children's Lawyer who contends for a more aggressive suite of interim orders, with the express intention of moving X into foster care. During the hearing, the Independent Children's Lawyer candidly explained her twofold motivation. The first is that X needs assistance urgently, and time is marching on. The second is that, as I have previously discussed, if I do not make an order that X go into the father’s care (and hence really foster care), in any event that is likely to be the situation that is necessitated at the end of any trial, some months down the track.
However all of this is predicated upon a pessimistic, albeit perhaps realistic, view that the Department is unlikely to intervene. That remains to be seen. It should be known within the next few months. To subject X to the inevitable dislocation which the Independent Children's Lawyer’s orders would effect, absent certainty of the Department’s position, is in my view, a step too far, and not presently in his best interests.
TIME AND COMMUNICATION
The father did not propose any communication between himself and X beyond that which they can effect in a five hour period each Saturday, when he proposes that the children spend time with each other in his care. He explicitly proposes that Y spend no time nor have any communication with the mother. As I have earlier noted, the mother, apparently, proposes that the children may speak with her or the father as may be agreed between the child and the parent they wish to speak to. In the event that the child does not so agree, then it is to be “at least every second day, in the afternoon after school” at an unspecified time and for an unspecified duration. The Independent Children's Lawyer proposes that the mother have no contact or communication with either child, although as has been seen, X will be living with the mother.
The question then is whether, for the next few months, Y should be wholly quarantined from either spending time or communicating with his mother. Is that in his best interests? Here it cannot be overlooked that Ms H supports such an outcome and Dr J does so to a less severe extent. True it is that their reports are yet to be tested under cross-examination, and may yet be challenged by contrary evidence, but it is not the certainty, but rather the risk which they advert to, which is problematic at this time.
In her submissions to me, the mother in rather an impassioned way, suggested that no child, nor their parent, particularly a mother, should be precluded from seeing, or speaking with, each other. The difficulty for the mother is that she, at least on one view, has induced or facilitated X’s failure to maintain a relationship with his father, and Ms H’s prediction is that will occur with Y also.
Although untested, the evidence of the father is that, often X’s, and on occasion Y’s, refusal to do as he suggests, or to otherwise misbehave, has followed almost immediately after communication with their mother. This is one of the recurrent themes which Ms H has raised, namely that the mother uses her time and communication with the children as a means to undermine the father, and as a means to achieve what she believes to be the outcome in the best interests of the children. One cannot overlook that X presently has no relationship with the father, as Ms H predicted.
In my view, any interim order of the Court ought be fashioned to avoid a similar outcome for Y. Even accepting that, given the disputed facts, I am precluded from reaching any firm conclusions at this stage, nonetheless I assess that the risk raised from all of the evidence is sufficient to presently curtail any spending of time or communication between the mother and Y. That sad outcome is presently in Y’s best interests. I do not overlook that it means that, for the duration of the interim orders, he will be denied any relationship with the mother – a severe outcome. Yet even on an interim hearing, I assess the risk of the loss of Y’s relationship with the father justifies that outcome.
It is to be hoped that the mother realises the desirability of her seeking assistance to ensure that by the time of trial, she can persuade the Court that either there is no risk of the kind adverted to by Ms H, or alternatively that any such risk has been adequately mitigated.
TIME BETWEEN THE CHILDREN
I am satisfied that the children should maintain some connection, so long as it is safe. The father says it should be between 1:00 pm and 6:00 pm each Saturday. The mother proposed that it be with each parent on alternate weekends for the entirety of the weekend. That proposal would, however, see her spending time with Y which I am presently not persuaded should occur.
In any event, at this time I am not sufficiently persuaded that the mother can maintain Y’s safety when she has the care of X. I am somewhat more satisfied that the father can, although on occasion in the past it has obviously been impossible for him to do so effectively.
Five hours should provide some opportunity for the children to catch up and to share information and experiences. Hopefully during that time X will be able to restrain himself from threatening or perpetrating violence. The father seemed to suggest that he would likely engage the children in external activities in that time, so as to minimise the risk of X behaving violently. That would seem sensible.
There will therefore be orders as sought by the father in this respect.
OTHER ORDERS
I am not persuaded that either the father or the mother should be compelled to do that which Dr J has recommended. I have already adverted to the problems which the mother clearly recognised, arising from her seeming non-acceptance of Dr J’s diagnosis of a borderline personality disorder. To compel her to obtain a treatment for something she believes she does not have would be likely counterproductive. However she should have leave to publish to any relevant therapist all the Family Reports and Dr J’s report, and these reasons and orders.
I do not propose to compel the father to do that which he is prepared to do voluntarily.
That then raises the question of whether the parties should be precluded from being able to vary these orders by parenting plan. Of course a parenting plan need be nothing more than a signed agreement (s 63C of the Act)
The criticism that has been made of the father, by at least Ms H, is that to date he has been far too compliant with, and proffered no real resistance to, the mother’s importuning of him in relation to children’s matters. As to that, the father now says that he recognises this, and proposes to do something in terms of building resilience. He may or may not. However the exigencies of parenting these highly problematic children suggest to me that flexibility at short notice may be required. For instance, if the mother were to decompensate under stress, as Dr J and Ms H say she might, plainly the father may wish to, on an interim basis and by agreement, take X into his care, yet the orders would preclude him from doing so. I am not persuaded that this case is yet at such an exceptional level that the parties should be deprived of being able, as between themselves, to deal with exigencies as they arise.
Otherwise there will be orders as sought by the father dealing with non-denigration, restraints on the mother, and other incidental matters.
I am also of the view that the Independent Children's Lawyer should be at liberty, should she so wish, to publish these orders and reasons to the Department and will grant that leave.
OUTCOME
There will therefore be orders as sought by the father at paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 18 of his minute of orders filed 10 May 2022.
LITIGATION FUNDING
The father also sought that an order which I made on 5 April 2022 affording the mother $75,000 to meet her future legal fees be suspended. The justification for that was that an unexpectedly high valuation of the former matrimonial home – which both parties agree the mother should retain under any property settlement – would mean that, if the mother took $75,000 by way of legal fees, which in the usual course, would be added back into the pool, she could no longer be in a position to take her home.
However as I discussed with the parties during the course of the hearing before me, the mother is plainly aware that the consequence of her accessing the $75,000 under my orders of 5 April 2022, may well be that she is precluded from taking the home, and it would thus need to be sold. The matter has been explained clearly to her, and it did not seem to me that she was unable to understand it. That is a risk which she is therefore entitled to take.
I decline to suspend my orders of 5 April 2022.
FUTURE DIRECTION
Although the father proposed that this matter would be adjourned for mention to a particular date, it seems to me that that is only likely to lead to an administrative adjournment. I will simply make an order permitting any party to seek to re-list the Trial Management Hearing on 7 days’ written notice to the other parties.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 1 June 2022