Crestin & Algar (No 2)
[2022] FedCFamC1F 656
Federal Circuit and Family Court of Australia
(DIVISION 1)
Crestin & Algar (No 2) [2022] FedCFamC1F 656
File number(s): PAC 2862 of 2018 Judgment of: HANNAM J Date of judgment: 2 September 2022 Catchwords: FAMILY LAW - Parenting - Where Court considers competing proposals for the parenting arrangements of two half-brothers - Where expert considers mother’s opposition to older child’s relationship with father is detrimental to that child’s best interests - Where Court accepts expert evidence about the risks and potential harms to children who lose significant attachment figures in their lives - Where other weighty matters in the Court’s determination include the likely effect of change in circumstances and the expert’s assessment of profound differences in each parent’s households and their capacity to provide for the children’s developmental needs - Where in the circumstances the parenting arrangements sought by the father and ICL for both children are more consistent with expert’s evidence and recommendations - Where presumption of equal shared parental responsibility is also rebutted due to ongoing parental discord - Orders made in terms that are a hybrid of the father and ICL’s proposals. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC Cases cited: Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 309 Date of hearing: 17 – 19 January 2021, 14 April 2022 Place: Parramatta Counsel for the Applicant Mr Lloyd SC Solicitor for the Applicant Bilias & Associates Counsel for the First Respondent Ms Gillies SC Solicitor for the First Respondent Pryor Tzannes & Wallis Solicitor for the Second Respondent Litigant in person (did not participate) Counsel for the Independent Children’s Lawyer Ms Hayward Solicitor for the Independent Children’s Lawyer Adams & Partners Lawyers ORDERS
PAC 2862 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CRESTIN
Applicant
AND: MR ALGAR
First Respondent
MR HOOKE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
2 September 2022
THE COURT ORDERS THAT:
Parental responsibility
1.Mr Algar (“the father”) have sole parental responsibility for child X, born 2015 (“the younger child”).
2.The father is to inform Ms Crestin (“the mother”) of all decisions made by him about major long-term issues in relation to the younger child within seven (7) days of such decision being made.
3.The notice to be provided by the father to the mother pursuant to Order (2) above be in writing by email to the mother’s email address, currently …@hotmail.com.
4.The father is not required to inform the mother of decisions made by him in relation to the younger child that are not major long-term issues.
5.The mother have sole parental responsibility for child Y, born 2013 (“the older child”).
Living arrangements
6.The younger child is to live with the father.
7.The older child is to live with the mother.
Spend-time arrangements
8.The younger child is to spend time with the mother during the school term each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday from the commencement of these orders.
9.The younger child is to spend time with each of the mother and the father (“the parents”) during the school holidays as follows:
(a)With the father for the first half of each school holiday period in all odd-numbered years and the second half of each school holiday period in all even-numbered years; and
(b)With the mother for the first half of each school holiday period in all even-numbered years and the second half of each school holiday period in all odd-numbered years.
10.For the purposes of Order (9) :
(a)The first half of the school holiday period is from the conclusion of school on the last day of school of the preceding term until 5.00pm on the middle day of the school holiday period;
(b)The second half of the school holiday period is from 5.00pm on the middle day of the school holiday period until the commencement of school on the first day of school of the following term; and
(c)The middle day of the school holiday period is calculated by dividing the number of nights in the school holiday period in half and, if there is an uneven number of nights, then the extra night falls as part of the first half of the school holiday period.
11.The younger child is to spend time with the father on the following special occasions:
(a)From 9.00am until 6.00pm on Father’s Day each year;
(b)From 9.00am until 6.00pm on 16 September each year;
(c)From 2.00pm on 18 December until 2.00pm on 19 December in all odd-numbered years and from 2.00pm on 19 December until 2.00pm on 20 December in all even-numbered years;
(d)From 2.00pm on 24 December until 2.00pm on 25 December in all even-numbered years and from 2.00pm on 25 December until 2.00pm on 26 December in all odd-numbered years; and
(e)Such other times as agreed between the parents.
12.The younger child is to spend time with the mother on the following special occasions:
(a)From 9.00am until 6.00pm on Mother’s Day each year;
(b)From 9.00am until 6.00pm on 27 January each year;
(c)From 2.00pm on 18 December until 2.00pm on 19 December in all even-numbered years and from 2.00pm on 19 December until 2.00pm on 20 December in all odd-numbered years;
(d)From 2.00pm on 24 December until 2.00pm 25 December in all odd-numbered years and from 2.00pm on 25 December until 2.00pm on 26 December in all even-numbered years; and
(e)Such other times as agreed between the parents.
13.Orders (8), (9) and (10) above are temporarily suspended where necessary to give effect to Orders (11) and (12) above and such other times as agreed between the parents.
14.The older child is to spend time with the father as follows:
(a)Commencing on the second weekend following the date of these Orders (being the same weekend that the younger child is spending time with the father) and each alternate weekend thereafter from 10am until 3pm on Saturday for six (6) consecutive occasions with the father to collect and return the older child to and from the mother’s home;
(b)Thereafter, during the school term one weekend every four (4) weeks commencing on the first weekend that the younger child is with the father after the conclusion of Order (14)(a) above (with such weekend to continue to be the same weekend that the younger child is spending time with the father) and continuing every 4th weekend thereafter with the father to collect the older child from the mother’s home on Friday at 5pm and the mother to collect the older child from the father’s home on Sunday at 6pm unless otherwise agreed; and
(c)Such other times as agreed between the parents.
15.During the school holiday period that first occurs after the commencement of the older child’s overnight time with the father pursuant to Order (14), the older child is to spend time with the father during each school holiday period from the time the younger child is to commence spending time with the father pursuant to Order (10)(a) above until 5pm three days later and such other time as may be agreed between the parents.
The younger child’s schooling
16.The younger child is to continue to be enrolled in and attend B Town School at C Street, Suburb E, New South Wales.
Changeover
17.Whenever the younger child is to spend time with the mother commencing and/or ending on a school day the father is to collect the younger child directly from the school and deliver him straight to the mother’s home within 1 ½ hours after the end of the younger child’s school day and the father is to collect the younger child from the mother’s home at a time which is 1 ½ hours before the commencement of the younger child’s school day and deliver him to school.
18.Whenever the older child is to spend time with the father that does not include overnight, the father or his nominee is to collect and return the older child from the mother’s home for the purposes of that time unless otherwise agreed.
19.When the older child’s time with the father includes overnight, the father or his nominee is to collect the older child from the mother’s home on Friday at 5pm and the mother is to collect the older child from the father’s home at 6pm at the conclusion of that time unless otherwise agreed.
20.For the purposes of changeovers which are not otherwise specified in these Orders the parent who is commencing time with either or both of the children is to collect that child or children from the home of the other parent unless otherwise agreed between the parents.
21.In the event that either parent is anticipating being more than 15 minutes late to collect or drop off either of the children at any time, they are to notify the other parent by telephone including an estimated time for arrival unless otherwise agreed between the parents.
Telephone communication
22.Both the younger and older child are at liberty to communicate with each of the parents by telephone, or by such other form of video telephony or electronic communication (such as Facetime and Skype) by either child’s instigation at any time.
23.Each of the parents are at liberty to communicate with the younger child by telephone, or by such other form of video telephony or electronic communication (such as Facetime and Skype) by such parent’s instigation between 6.30pm and 7.30pm each day that the younger child is with the other parent. To give effect to this order the parent wishing to communicate with the younger child is to call the other parent’s mobile telephone number or electronic communication account.
24.Each of the parents are to facilitate the communication pursuant to Orders (22) and (23).
Overseas travel
25.Pursuant to s 11(b)(i) of the Australian Passports Act 2005 (Cth), the younger child is permitted to have an Australian travel document (including the renewal or re-issue of an Australian travel document) upon application by the parents, or either of them individually, to the Minster for Foreign Affairs or the Minister’s nominee.
26.Each of the parents are at liberty to cause the younger child to travel outside the Commonwealth of Australia subject to:
(a)Providing written notice to the other parent of the intended travel (including destination/s) at least twenty-eight (28) days prior to departure;
(b)Providing the other parent with copies of the travel tickets and flight itinerary (including for the return travel) for the younger child at least seven (7) days prior to departure;
(c)Providing the other parent with details of where the younger child will be staying and a telephone number to contact the younger child while he is outside the Commonwealth of Australia at least seven (7) days prior to departure;
(d)Causing the younger child to have received all recommended vaccinations for the destination/s of travel; and
(e)Obtaining the other parent’s written consent if any of the following apply:
(i)A destination is classified as “Level 3 - Reconsider your need to travel” or “Level 4 - Do not travel” on the Australian Travel Advice Index maintained by the Department of Foreign Affairs and Trade; or
(ii)The travel falls during the time the younger child is to live with or spend time with the other parent pursuant to these orders.
27.The parent with possession or control of the younger child’s passport is to provide such passport to the other parent at least fourteen (14) days prior to any proposed travel pursuant to these orders.
Family therapy
28.Within 14 days of the date of these Orders the parents are to do all things necessary to contact and engage Dr F (or such other family therapist as agreed between them or recommended by the ICL) for the purposes of commencing and engaging in family therapy for the purposes of supporting the older child to recommence his relationship with the father and improving the parents’ co-parenting relationship and such other goals as identified by the family therapist.
29.In relation to family therapy in Order (28), the parents are authorised to provide to the family therapist a copy of Dr A’s reports in these proceedings dated 2019 and 2021, and a copy of these Orders and Reasons.
30.For the purposes of family therapy in Order (28) above, each of the parents are to do all things necessary to comply with any recommendations of the family therapist including but not limited to always ensuring their own attendance and the attendance of the children at the request of the family therapist.
31.Unless otherwise agreed, the parents are to equally share the costs associated with family therapy in Order (28) above.
Other orders
32.Each of the parents are to keep the other parent informed of:
(a)Their current residential address and mobile telephone number
(b)The name and contact details of all medical and allied health practitioners attended upon by the younger child; and
(c)Any medication or treatment prescribed for the younger child.
33.Each of the parents are to notify the other parent of any medical emergency or other serious illness affecting the younger child as soon as is reasonably practical and within twelve (12) hours. It is noted that the obligation imposed by this order requires a notification as soon as is reasonably practical, which may be sooner than twelve (12) hours depending on the circumstances.
34.By this order, each of the parents are authorised to obtain, at their own cost, information and copies of all documents relating to the younger child’s care, welfare and development from:
(a)All schools, child care facilities and extra-curricular activities the younger child may attend; and
(b)All treating medical and allied health practitioners (including any counsellors, psychologists, psychiatrists and social workers) the younger child may attend.
35.Pursuant to s 121(9)(d) of the Family Law Act 1975 (Cth) (“the Act”), each of the parents are at liberty to provide a copy of these Orders to any of the people or entities described in Order (34) for the purpose of giving effect to that order.
36.Whenever the younger or older child are with or communicating with either of the parents, that parent must:
(a)Respect the privacy of the other parent and not question the younger or older child about the personal life of the other parent;
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent or the other parent’s relatives, partners and associates in the presence or hearing of the younger or older child and use their best endeavours to ensure no other person does so.
37.Pursuant to s 69VA of the Act, it is declared that the mother and the father are the parents of the younger child.
38.Pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) (“the Births, Deaths and Marriages Registration Act”) the identity of the younger child’s parents (declared pursuant to Order (37)) is to be included in registerable information about the younger child’s birth in the Births, Deaths and Marriages Register maintained by the New South Wales Department of Justice.
39.Within 28 days of the date of these Orders the parents are to do all things necessary including signing all documents required to register the younger child’s name with the Births, Deaths and Marriages Register as “X Algar-Crestin” and both parents are to ensure that the younger child is referred to by that name at all times, including but not limited to, school enrolment forms and any other documentation relevant to the younger child.
40.Each parent is to ensure that the younger child is aware that he is known as “X Algar-Crestin”.
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 Crestin & Algar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
Introduction
These proceedings concern the future parenting arrangements for two half-brothers (“the children”), aged eight (“the older child”) and six (“the younger child”).
The mother of both children (“the mother”) and the father of the younger child (“the father”) (collectively “the parties” or “the parents”) both seek orders in relation to both boys. The second respondent who is the father of the older child has taken no part in the proceedings except for attending a mediation in 2018.
There is no dispute between the parties that the older child is to remain living with the mother and that she should hold sole parental responsibility for him. The only dispute in relation to that child is whether orders are to be made that he spend time with the father as the father seeks. The mother opposes the father’s proposal in relation to this child and seeks orders that he have no time with the father except with her agreement.
Each of the parents seek orders for the younger child to live with that parent and spend substantial and significant time with the other. The father proposes that he hold sole parental responsibility for this child while the mother seeks an order that she and the father equally share parental responsibility for him.
The Independent Children’s Lawyer (“ICL”) proposes orders that are similar though not identical to the father’s proposal in relation to the younger child, that is that he live with the father and spend defined time with the mother. The ICL also proposes orders for the older child to spend time with the father. The ICL supports the mother’s proposal that she and the father equally share parental responsibility for the younger child.
The question for me to determine is which of the proposed parenting arrangements is proper having regard to the best interests of the children as the paramount consideration.
Background
The mother who is aged 37 had two children (“the mother’s older children”) to different fathers prior to commencing a relationship with the second respondent in 2011. The mother and second respondent separated in early 2013 when she became pregnant with the older child.
In 2013 the older child was born extremely prematurely and was resuscitated at birth. Shortly after his birth, the older child was diagnosed with a disability. He received specialist treatment which has been ongoing throughout his life.
It is the father’s contention that the mother’s older children and the older child in these proceedings were exposed to an unstable family environment in the mother’s care including exposure to significant parental conflict and family violence especially at the hands of the older child’s biological father, the second respondent in these proceedings.
The mother and the father, who is aged 46, met and commenced a relationship in early 2015.
The parties’ only child (the younger child in these proceedings) was also born premature in 2015 and remained in hospital until early 2016.
At the time of the mother’s discharge from hospital the parties and one of the mother’s older children (“the mother’s other child”) started living together with the children in the father’s rented home in the suburbs of Sydney. Upon his discharge from hospital, the younger child also formed part of the parents’ household. From at least this time, the second respondent had no involvement in the older child’s life, and the father effectively adopted the role of “father” to the children.
The father contends that from around the beginning of 2016 the mother began engaging in excessive alcohol use. He also contends that the mother was taking medication to address her depression and anxiety at the time. The mother disputes the father’s evidence concerning the extent of her alcohol consumption.
From around mid-2016, both parents were employed and the children attended childcare four days per week.
It appears to be common ground that from around late 2016 the parties began experiencing relationship difficulties, which the father contends were related to the mother’s ongoing alcohol misuse. These difficulties escalated and in mid-2017 the father alleges that the mother punched him in the presence of the children. There was a further incident in late 2017 in which the father was assaulted by the mother.
In May 2018 the parties’ ended their relationship but both remained living in the same home for about a month. The father offered to assist the mother financially so that she could remain living nearby and the children and the mother’s other child could continue attending childcare and schools in which they were enrolled.
In June 2018 the mother moved with the children and her other child to another part of Sydney, approximately 44 kilometres from the father’s home, where she remains living. The mother alleges that this move was precipitated by her becoming aware that the father had recorded her movements without her consent, a matter which the father disputes.
It appears to be common ground that the parties reached some agreement for the children to spend time with the father following physical separation. Pursuant to this agreement, the mother delivered the children to the father on 14 June 2018 and the following day the father engaged a lawyer.
On 17 June, the father’s lawyer wrote to the mother requesting that she provide information including about where she and the children were living. The lawyer also requested that the mother confirm that she would refrain from alcohol abuse and participate in testing and follow advice provided to her by her assessing clinical psychologist. On the same day, the father refused to return the children to the mother as agreed and remained uncontactable for the following seven days.
On 26 June 2018 the mother filed an Initiating Application in the Federal Circuit Court (as it was then known) seeking parenting orders including a Recovery Order.
The father returned the older child to the mother’s care prior to the first court event on 28 June 2018 at which time the mother’s application was adjourned until the next court event on 2 July 2018.
On 2 July 2018 an ICL was appointed and the mother’s application for a Recovery Order was again adjourned and the ICL requested to attend on the adjourned day. Orders were also made with the consent of the parties pending further order including that the younger child live with the father and that the younger child spend time with the mother at the mother’s discretion at the child’s day-care centre on any day the younger child attends day-care.
On 7 August 2018 the parties including the second respondent attended a court-ordered mediation in respect of the children. The mother and father reached agreement for an arrangement with respect to the younger child and the mother and second respondent reached agreement in relation to the older child. No agreement was reached in relation to the older child’s time with the father.
On 10 August 2018 orders were made in chambers in accordance with interim terms of settlement consented to by the parties which provided that the younger child live with the mother for 3 nights per week and with the father 4 nights per week and that the mother be restrained from consuming alcohol to a level exceeding the legal driving limit while the younger child is in her care. An order was also made requiring the mother to attend all appointments with her psychologist and to follow all directions in relation to any medication relating to any mental health issues.
In December 2018 a single expert was appointed to assess the family for the purposes of assisting the Court in resolution of the dispute.
From at least the commencement of 2019, any cooperative communication between the parties had broken down and through their legal representatives both parties were engaged in disputes with one another concerning a range of matters both related and unrelated to the children.
The expert appointed in the proceedings (“the expert”) interviewed the family (including the second respondent) over three days in April 2019. His report dated 8 May 2019 (“the expert’s report”) was released to the parties a short time later.
The expert’s evidence is a matter that will be dealt with at length later in these Reasons. It suffices to say at this stage that the expert’s recommendations included that the mother have sole parental responsibility for the older child and that this child live with her, and that the father have sole parental responsibility for the younger child and that this child live with him and spend alternate weekends and half school holidays with the mother. The expert also recommended that the older child maintain regular contact with the father.
Following the release of the expert’s report, the parties continued to make ongoing allegations against one another generally through correspondence between their legal representatives about various matters related and unrelated to the care of the children. In these proceedings they each make allegations about the other parties’ conduct over a lengthy period following separation.
In November 2019 the proceedings were transferred to the Family Court (as it was then known). The following month the younger child commenced pre-school near the father’s home.
At a point in time which is in dispute between the parties, the father formed a relationship with a new partner (“the father’s partner”) who has two children in her full-time care and who is engaged in a family law dispute with her former partner, the father of her children (“Mr H”).
The mother claims that when the younger child returned to her care on 19 February 2020 he reported that there had been a violent home invasion at the father’s home relating to the father, his partner and the partner’s children. The mother also claims that this child reported that he is going on an aeroplane “forever”. The mother did not consider that the explanation she sought from the father in relation to this incident was satisfactory and in response retained the younger child in her care and withheld him from the father for a period of five weeks contrary to the interim orders in force at the time.
The day after she first retained the younger child in her care, the mother filed an application seeking to suspend orders with respect to this child’s time with the father until the incident said to have been disclosed by this child was investigated.
The mother’s application for suspension of the interim orders was heard by a Senior Registrar on 26 March 2020 and dismissed. The younger child then recommenced spending time with the father. Other orders were also made on this date (“the March 2020 interim orders”) including for the older child to spend time with the father for five hours once a month for a period of four months, which was to then increase to a period of eight hours every fourth Saturday.
Shortly after these interim orders were made, the older child began spending time with the father for a period that soon exceeded the time allowed for in the orders including overnights on some occasions.
In May 2020 the mother’s lawyer advised the father that the mother was at that time in a “permanent relationship” with a named person (“the mother’s recent former partner”). The mother’s lawyer advised that this relationship had been “under foot for over a year” but that the mother had only recently introduced this partner to her children.
It appears that the mother separated from her recent former partner in about July 2020 and by September 2020 she had begun another relationship with another man (“the mother’s current partner”).
From September 2020, the older child ceased spending time with the father, though the parties are in dispute as to why this occurred. It is the father’s case that a few months earlier, on 27 June 2020, the mother alleged that he had struck this child, an allegation that the mother subsequently withdrew. The father contends that the mother made a further separate allegation along similar lines shortly before ceasing to make the older child available, while the mother contends that the older child refused to spend time with the father due to the father’s poor treatment of him. This is a matter to which I will return.
On 19 November 2020 the younger child was assessed by specialist treatment providers in the company of the father alone. The parties are in dispute about the reason that the father only attended with the child at this assessment. There is no dispute, however, that this child was assessed as “dysregulated, immature and anxious”. It is also common ground that by this stage the father had taken this child to a school orientation day at a school near his home without advising the mother. The mother’s intention had always been for the younger child to be enrolled at a school near her home also attended by the older child.
In late 2020 the father filed an application seeking orders that restrained both parents from causing the younger child to commence his primary education until further order.
On 11 February 2021 orders were made in chambers with the consent of the parties restraining the parties from enrolling the younger child or commencing his primary school education until further order.
At around this time it became apparent that the mother was pregnant with a child from her current relationship.
It is also apparent from the parties’ respective affidavits that each of them took various steps to carry out investigations into the circumstances of each other’s household and made ongoing allegations about the conduct of the other. Investigations undertaken by the mother into the circumstances in the father’s household included through engagement of a private investigator and making contact with the father’s partner’s former partner, Mr H.
In June 2021 the mother filed an application seeking access to the court file in family law proceedings between the father’s partner and Mr H.
In mid 2021 the father filed a contravention application in relation to the mother not making the older child available to spend time with him on 11 occasions and a contempt application alleging that the mother gave a copy of one of his affidavits filed in the proceedings to Mr H.
On 5 August 2021 in a court event known as “the winter callover” these proceedings came before a judge other than the allocated trial judge. At that court event orders were made confirming appointments with the single expert with a view to obtaining an updated expert report (although no order had been made for an update report) and for the parties to attend mediation.
On 11 and 12 August 2021 family members were assessed by the expert for a second time via a video platform.
On 20 August 2021 the expert’s supplementary report was released. In brief summary, the expert maintained his earlier opinions and recommendations and further recommended that the younger child commence at a school near the father, as the father sought at the time.
In September 2021 the father and his partner, together with the partner’s two children moved to new premises which they leased together in the same suburb in which the father had been living.
On 29 September 2021 the father filed an application seeking orders in relation to the younger child’s enrolment at school. In the following month, the mother’s application to seek access to the court file in relation to the family law proceedings between his partner and Mr H was dismissed. The father subsequently withdrew both his contempt and contravention applications and on 26 November 2021 directions were made to ready the matter for final hearing.
In late 2021 the mother gave birth to her fifth child, the children’s half-sister.
On 5 January 2022 the mother amended her application for final orders to seek orders that she and the father equally share parental responsibility for the younger child except in relation to his schooling. The mother also sought orders that she hold sole parental responsibility for the older child who she proposed would live with her together with the younger child. The mother proposed that the younger child spend substantial and significant time in the father’s care including half of each school holiday period, while the older child spend no time with the father.
A few days later the father also amended his Response to seek orders that he have sole parental responsibility for the younger child, that this child live with him and spend time with the mother each alternate weekend and half of the school holidays. He proposed that the older child spend one weekend every four weeks in his care which is to increase during school holidays when the younger child is to also be spending substantial time in his household.
In their respective applications for final orders each party also proposes differing orders relating to the younger child’s schooling. The father seeks an order that this child be enrolled at a primary school close to his home, while the mother proposes that this child be enrolled in a school closer to her home, also attended by the older child.
The hearing
At the final hearing which commenced on 17 January 2022 it was identified that the issue of where the younger child was to be enrolled for school required immediate judicial determination given the school year (which was this child’s first term of kindergarten) was to commence within two weeks of the hearing.
In these circumstances, I ordered on 19 January 2022 that pending final judgment the father be at liberty to enrol the younger child in a school close to his residence as he proposed. I also made an order that the child’s interim living arrangements be slightly varied to reflect that the child’s time with the father during the school term commence at the completion of school on Wednesday each week.
Before adjourning the proceedings part-heard for a couple of months, I delivered my reasons for making the foregoing orders ex tempore. I indicated that in considering which school the child is to be enrolled in on an interim basis (noting that it may change in light of the parties’ competing proposals for the child’s final living arrangements) I attached particular weight to evidence given by the expert about this issue under cross-examination.
In particular, I considered weighty the expert’s opinion that it would be more disruptive to the child if he were to commence at a school in which the older child is currently enrolled (as proposed by the mother) if that enrolment were to later change as a result of final orders. In other words, the expert was of the view that it would be easier for the younger child to navigate a change in his circumstances if he were to first live with the father, attend a nearby school and subsequently live with the mother and change schooling arrangements, than if it were the other way around.
In the adjourned period both parents filed further evidence regarding events following the making of interim orders. In summary, the mother alleged that in the intervening period the father was obstructive of the younger child’s relationship with her, which the father denied.
When the final hearing resumed in March 2022 each party’s proposal for final orders remained unchanged. At the close of evidence the ICL requested further time to file a final Minute of Order which I granted. I then directed the parties to provide to each other and directly to chambers their final submissions with respect to the orders they seek upon receiving the ICL’s proposed final orders and also listed the proceedings for two hours of oral submissions in April 2022.
Each of the parties and ICL provided their final written submissions on 8 April 2022 and after hearing brief oral submissions made on behalf of each party and the ICL on 14 April 2022, judgment was reserved.
THE MATTERS in dispute
It appeared from the Outlines of Case and affidavits of each of the parties that there have been many factual matters in dispute between the parties, many of which endured until the commencement of the final hearing.
In particular, each of the parties appeared to advance cases about matters of risk in the other parent’s household and adduced evidence which I understood appeared to support those cases. For example, each of the parties deposed to matters in their respective affidavit about the reasons the parties’ separated which may be considered relevant to the best interests of the children. The father contended that the mother was experiencing serious mental health difficulties for which she received medication and that a change in her medication and her excessive alcohol consumption affected her conduct and parental capacity at around the time of separation. The mother on the other hand, contended that she became aware around the time of separation that the father was conducting surveillance and recording her movements without consent which, if accepted, may amount to the father perpetrating family violence.
Correspondence between each of the parties’ legal representatives and matters deposed to in their respective affidavits also reveal considerable dispute between the parties about the actions of the other concerning a wide range of matters such as the father’s conduct in regaining possession of a car, the circumstances in which the father alone attended various medical appointments in relation to the younger child, the mother’s conduct in engaging an investigator to monitor the father’s movements and activities, her approach to Mr H and involvement of this person in the proceedings, and a wide range of other matters some of which appear to be only tenuously connected to any matter relating to the welfare of the children.
In the course of the proceedings, many of these factual disputes between the parties were not pursued and others which were pursued were ultimately of little moment having regard to the parenting arrangements that each party seeks in the proceedings.[1] Each parent seeks orders in relation to the younger child that he live with that parent and spend substantial and significant time with the other parent. In other words, neither party contends that the other party poses an unacceptable risk of harm to the younger child as each seeks orders that this child spend at least substantial and significant time with the other parent. Nor does either party contend that the younger child does not receive a benefit from having a meaningful relationship with each parent.
[1] For example, each party seemed to be particularly concerned with identifying exactly when the relationship between the father and his partner commenced and the circumstances in which that occurred, and even sought findings in relation to the credit of each party using this matter as an example.
According to the mother’s Outline of Case, one of the primary issues to be determined by the Court at final hearing was whether the father correctly informed the expert of matters within his knowledge and/or reported to him. It appears that the mother was to contend that the father did not accurately report various matters to the expert and in this way the mother was to challenge the factual basis for the expert’s opinion.
However, as will be seen when considering the expert’s evidence (to which I will come), virtually the entirety of cross-examination of the expert by the mother’s counsel related to the relationship between the children and the expert’s opinion concerning the impact upon the children if orders were made as the expert recommended.
Of note, the expert was not challenged about the matters that he took into account in forming his opinions and recommendations such as the history of the mother’s relationships, the mother’s conduct in relation to supporting the maintenance of the children’s relationships with significant figures in the children’s lives, and the different arrangements made for the care of all of her children throughout their lives. Further, it was not suggested during cross-examination of the expert that information given by the father as to any substantial matter when he was assessed was inaccurate or that further information had emerged in the course of cross-examination that required reconsideration of the father’s account when assessed.
In the foregoing circumstances, it is not necessary to resolve any disputes concerning factual information given to the expert in respect of which the parties’ have differing accounts.
In final written submissions made on behalf of the mother, the words “a finding is sought” appear 29 times. Many of the matters in respect of which a finding is sought do not entail my acceptance of the mother’s version of events over the father’s version as they were not the subject of any dispute in the proceedings.[2]
[2] For example, the mother seeks a “finding” that the father’s partner has no relationship with the older child, that the younger child had an expectation that he would be attending the same school as the older child from 2022, and that the younger child expressed his love for his mother and the older child and his desire to go to school with the older child when assessed by the expert, all matters which are not in dispute in the proceedings.
Other “findings” are sought in relation to the opinion expressed by the expert rather than relating to the facts upon which the expert based his opinion.[3] Other findings of a similar nature sought by the mother are that she “is child-focussed”, that the nature of the father’s application demonstrates his “obvious inability to appreciate the damage [to the children] that such an arrangement has produced and would produce” and that the father has not displayed any proper or adequate consideration or understanding for the younger child’s connection to the older child.
[3] For example, the mother seeks a “finding” that the expert directly and indirectly criticised her for having various children by different fathers and that current interim arrangements in relation to the younger child’s schooling have caused significant psychological damage to the older child. There are also various findings sought to the effect that there is a risk of “alienation” of the younger child from his mother in the orders sought by the father, but no questions at all were asked of the expert in relation to alienation or any risk of it.
An examination of written submissions made on the mother’s behalf reveals that the only finding in relation to facts in dispute between the parties’ sought by the mother, is a finding that the father assaulted the older child (inferentially in around August 2020).
In final oral submissions (in which the mother’s counsel indicated would further develop the written submissions), nothing further was said in relation to the finding sought on the mother’s behalf that the father had assaulted the older child.
The mother also seeks findings in relation to the credit of witnesses. In particular, she seeks a finding that the father’s partner was deceptive in relation to the circumstances in which she first met the father and otherwise gave her evidence “in a most unconvincing way” and “did not display any warmth or detailed particulars of the case brought by the father”. The mother also seeks a finding that the father was deceptive in his evidence in relation to this matter.
In my view, the circumstances of the father’s meeting with his partner is peripheral to the matters in dispute in these proceedings and as this matter has no bearing upon the orders sought, it does not require resolution or a finding as sought.
The mother seeks findings in relation to the credit of the father’s partner about matters on her website, services she advertises and her request for payment of services in US dollars. I fail to see how these matters have any bearing upon the credit of this witness, or the relevance of these matters to the issues I am required to determine in the proceedings and the adverse finding sought in relation to her credit as sought is not made.
Although it appeared from the Outline of Case filed on the father’s behalf and his trial affidavit that he would seek various findings of fact be made by the Court,[4] virtually all of those matters fell away in the course of the proceedings. The matters that remained were also of little significance in the proceedings.
[4] For example, it is contended on behalf of the father in his Outline of Case that he was the victim of family violence during the course of the parties’ relationship. In final written submissions made on his behalf the father did not seek a finding that the mother had perpetrated family violence and it was conceded that such a finding would make no impact on the orders sought.
Having regard to the foregoing, the only factual matter I am required to determine is whether the father assaulted the older child in about August 2020.
The alleged assault by the father on the older child
The mother’s affidavit account in relation to the alleged assault of the older child is extremely limited. She deposes as follows:
In August 2020, [the older child] alleged [the father] physically assaulted him as a result; [the older child] refused to attend any further visits. [The father] has denied he hit [the older child], To the Single expert, he called the allegation ‘ridiculous’ however even [the younger child] corroborated the event.
In a confrontation with [the older child] about the incident, [the father] accused [the older child] of lying. This distressed [the older child] even further who disclosed the incident to his therapists and school Principal. As a result of [the older child]’s distress, the matter was reported to Community and Justice Services (DCJ).
I attempted to engage [the father] to resolve the issue amicably; however he refused to admit the incident had occurred. (As written)
According to the father’s affidavit, the allegation that he had assaulted the older child was first made in the course of a conversation on 27 June 2020 that the father had initiated for the purposes of facilitating the mother’s request to speak with the younger child when that child was in the father’s care (“the 27 June conversation”). The father recorded the conversation without the other speakers (the mother, her recent former partner and each of the children at times) being aware of that fact. In that conversation the mother leads and encourages the older child to tell the father (referred to as “daddy”) “what you don’t want him to do anymore”. The following was then said:
The older child: I don’t want to talk to dad
Mother: You don’t want to talk to dad?
The older child: Mm-mm.
Mother: No? What he’s done isn’t nice, is it?
Father: I beg your pardon?
Mother:Um, he’s actually gone to his school counsellor and made some serious allegations against you.
The older child: ‘Cause he hit me.
Father:All right, okay.
Mother:Um, apparently in the penis and you lock him outside the backyard. Is there anything you want to say to that?
Father:Nothing like that has even remotely happened.
Mother:Is that right [name of older child]?
The older child: Yes, he…
Mother:What, what happens when you go to Dad’s and he’s naughty?
The older child: He smacks me. He smacks-
Father:I smacked you? No [name of older child], I have never smacked you.
Mother:[crosstalk 00:01:26] smacked in the penis, so he hits you back in the face.
Father:No, nothing like that has happened [name of mother].
The older child: Yes you did, yes you did. It’s a lie, yes he did. Yes he did.
Mother:That’s all he’s been going on about.
The older child: Yes, you did dad.
Father:When did I do that [nickname of older child]?
Mother:When does that happen, [name of older child]?
The older child: When I [inaudible 00:01:47].
Father:When you what?
The older child: When I [inaudible 00:01:52]. And you lock me outside.
FatherWhen did anyone lock you outside, [name of older child]?
The older child: You did.
Father:When?
The older child: He’s a liar. You are a liar, Dad.
Father:No one has ever locked you outside, [name of older child].
The older child: Yes you have.
The younger child: You never locked you outside. (sic)
Father:Yeah.
The older child: Yes, daddy did.
The younger child: No, he didn’t.
…
According to the father’s affidavit, the mother and older child were both giggling and laughing throughout this conversation which the father deposes can be heard in the recording. The father denies in his affidavit ever striking the older child on any part of his body and says that the conversation including the mother laughing throughout caused him considerable distress.
The father deposes that the following day (28 June 2020) when he returned the younger child to the mother’s care the mother told the older child to apologise and the older child said to the father, “sorry it was a lie” and laughed. The mother then asked the older child to apologise properly saying “it’s not funny”. When this child refused to apologise again, the mother, the father and the mother’s former partner all told the older child that he is required to apologise to the father. The father deposes to saying to the mother that he would not do anything like that (strike the child), to which the mother answered “I knew that! I just, I was just telling you what he was saying”.
The father deposes that the mother then said in this conversation (“the first 28 June conversation”) “[the older child] was carrying on about it for days and I said to him you need to tell the truth. Cause otherwise someone’s gonna get in big trouble. And if you say things like that, people get in trouble and he was like ‘I lied’”. The father also deposes to having recorded this conversation without the consent of the other speakers.
According to the father’s affidavit, approximately 15 minutes after he left the mother’s home on 28 June 2020 following changeover he received a telephone call from the mother’s former partner and had a conversation with him for 40 minutes. The father deposes to the mother’s former partner giving him information about a number of matters relating to the mother’s household and also telling him that the mother had coached the older child to allege that the father had hit this child.
According to the father’s affidavit, in the course of a video call between himself and the children at 6.43pm on 28 June 2020 (when the children were at the mother’s home), the issue of the older child apologising to the father was raised again by the mother. Once again this conversation was recorded by the father without the consent of the participants. The tenor of this conversation (“the 28 June video conversation”) is that the mother once again confronted the older child about the allegations that child made against the father and reiterated to the child that if he told lies about his “dad”, the father would get in a lot of trouble and that for this reason the child needed to apologise to the father.
In the course of the 28 June video conversation the mother also makes it clear that both children had also complained that she had hit each of them which the mother maintained was also not truthful. At one point, the mother says “…I don’t understand why [the older child] is saying he’s been hit on the penis, because I know you would never do that in your life”. In the course of that conversation the father attempts to change the subject and proceed with talking to the children but the mother continues to revisit the topic and encourage the older child to apologise to the father.
At another point in the same conversation the mother told the father that he would see the older child on the upcoming weekend because that child had decided he would like to visit the father. The mother also told the father that it was up to him whether he wanted to have the older child overnight, that this was “no deal” to the mother and that the older child had asked “can he stay overnight”. Throughout the conversation the mother continued to return to the older child’s allegations and reminded the father that she did not believe them. It is also of note that on a number of occasions during this conversation the mother says to the father words to the effect that he is the older child’s father saying, “you’re his father…that’s just the way it is, that is what he sees…you know, you’re a good dad, I’ve never…I don’t have an issue with that. You are his dad, that’s it. It’s all he talks about”.
Under cross-examination it was initially put to the mother that the older child first made allegations that the father hit him in May 2020 (inconsistently with the father’s evidence) and that this child subsequently withdrew the application. Both matters were denied by the mother. The mother did, however, agree that the transcript of the 27 June conversation contained in the father’s affidavit is accurate. She said in answer to questions about this incident that the older child had first made the allegations against the father some days before the 27 June 2020 conversation but this was the first time she chose to raise it with the father.
The mother further agreed that in the 27 June 2020 conversation she did not suggest that she did not believe the older child’s allegations and that she considered it appropriate to have this conversation with the father in the presence of the younger child and to bring the older child into the conversation. She agreed that in this conversation she interrogated the father about the older child’s allegations and subsequently conceded that with hindsight it was inappropriate to have had this conversation in the presence of the children.
The mother then agreed on 28 June 2020 the older child retracted his allegations and said they were untruthful and that the younger child who was present during the video conversation on 28 June did not support the older child’s allegations.
According to the father’s affidavit, the older child regularly spent time with him for a longer period than provided for in the March 2020 interim orders and this included occasions overnight with the mother’s consent. In particular, the father deposes that subsequent to the older child’s allegations made in late June 2020, the older child spent time with him for a 24-hour period including overnight on the first weekend in July 2020, for a few hours on the older child’s birthday in 2020 and on three occasions on the weekends of 1-2 August, 15-16 August and 29-30 August 2020 for around 24 hours on each occasion including overnight.
The mother agreed under cross-examination that after the interim orders were made in March 2020 until late August 2020, the older child spent time with the father beyond the time stipulated in the orders including overnight time on the last weekend in April 2020 and two weeks later in May 2020. The mother also agreed that at the end of May 2020 she suggested to the father that he take the older child overnight and the father responded that he wanted to take it more slowly.
When the father was cross-examined the mother’s counsel did not ask any questions about the older child’s allegations of assault against him in June 2020, nor was the father challenged about his evidence that subsequent to these allegations having been made the older child continued to spend more extensive time with him than provided for under the interim orders including overnights.
According to the father’s affidavit he was then informed by the mother at a changeover on 2 September 2020 that the older child had made further allegations about his conduct. These matters first came to his attention in the course of a conversation at that changeover to which the mother, father and both children were parties and which the father recorded without the other parties’ knowledge or consent. The conversation (“the 2 September conversation”) went for approximately 17 minutes and an extract of 14 minutes is set out in the father’s affidavit.
At the commencement of the 2 September conversation, after the father greets the children, the older child says to the father “I need to tell you the truth”. When asked what happened, the younger child said “you smacked him”. The mother then asked the father “what’s going on?” and told the father that the older child had “told numerous people at school who are mandatory reporting (sic)”. She then asked the father about what had happened during an incident when the older child dropped a drink on the previous Saturday night when in the father’s company. The conversation then reflects a dispute between the older child and the father about how this child came to drop the drink. In the course of this conversation the older child alleged to the father that “you hit me on the bum” and the mother added “and he keeps saying, he keeps saying the head. And he’s told everyone…” All the parties to the conversation then argue about the event, with the mother insisting that the father did hit the older child as he has made consistent allegations to this effect while the father denies doing so and attempts to have the older child agree.
After the conversation continued in this vein for some time, the mother says of the older child “he’s about to cry…well he’s scared. He doesn’t want to come back”. After this, the mother continues to insist in the presence of the children that the father had been hitting the older child and demands an explanation, while the father continues to deny in the presence of the children that the allegation was true.
At various points in the conversation, the younger child is asked by the father whether he hit the older child in the head and the younger child says “never” “no” and words to that effect. The mother introduces to the conversation that the older child is “scared” of the father and asks the older child whether he wants to go with the father (referring to him by his first name rather than as ‘dad’) but the child cries and says that he wants to stay with his mother, wants to go inside and then says he is scared repeatedly. In the midst of the conversation, the mother berates the father for only wanting to have the older child one night a month and insists that the father does not want to have the older child at his house.
At another point in the conversation when the mother continues to insist that the father had hit the child and the father continued to deny it, the father involved the older child in the conversation telling him to “tell mummy what happened with the drink”. The father also made reference to the previous allegations that he had hit the older child in the penis and locked him outside, and in the presence of both children restated that that did not happen and that this child is lying. The younger child then said “yeah, you’re a liar”.
The father denies in his affidavit ever hitting either child. He was not cross-examined by the mother’s counsel at all about the allegations that he had assaulted the older child in either June or late August/September 2020. It was not put to the father that he did assault the child even though the mother seeks a finding that this occurred and there is no dispute that the mother’s withholding of the older child from spending any time with father arose from the older child’s complaints that he had been assaulted by the father.
Under cross-examination, the mother agreed that she had taken it upon herself to cease facilitating the older child’s time with the father since August 2020, that she had not brought any application to vary those orders and remained in breach of them.
Discussion and findings
I am not satisfied to the requisite standard[5] that the father assaulted the older child at any time and in particular, around June or August 2020 for the following reasons.
[5] In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities: s 140(1) of the Evidence Act 1995 (Cth).
First, although a finding to this effect was sought on the mother’s behalf the father was not cross-examined about any alleged incident in June or August 2020, it was not put to him that he did assault this child at any time and no submissions were advanced by the mother in respect of the matter.
Further, the father denies having assaulted the older child on any occasion and it is clear that the mother maintains that an assault occurred on the basis that the older child reported this complaint to her. In order words, the mother effectively seeks a finding that the older child was truthful when he reported the assault or assaults to her.
There are, in my view, a number of difficulties in making a finding to the requisite standard on the basis of the older child’s reports. First, the mother only deposes to the older child making an allegation along these lines in August 2020, so it must be assumed that she seeks the finding in relation this later complaint. As previously set out, her affidavit is extremely scant in relation to the older child’s report concerning this incident. It is not clear what she contends the older child reported to her, or any of the circumstances surrounding this child’s complaint. No further details came to light in the mother’s oral evidence other than that the child had first made this complaint a few days prior to the mother raising it with the father.
According to the expert’s unchallenged evidence as to this matter, the older child’s communication when he interviewed that child was observed to be highly responsive to the mother’s dramatic changes in affect and his presentation was suggestive of coaching by the mother. In my view the recording made by the father of the 2 September conversation in which allegations about this alleged assault were made are consistent with the expert’s observations in this regard.
In the 2 September conversation, the older child commences his interaction with the father in a friendly or neutral manner and then declares that he “needs to tell the truth”. Although the older child then reported that the father hit him “on the bum”, the mother then interjects and says that this child “keeps saying” to “everybody” that he has been hit “in the head”. It is also the mother who first mentions in the presence of the children that the older child is now saying “he does not want to come [to spend time with the father] anymore” and immediately thereafter this child repeats this statement. It is also the mother who first mentions that the older child is about to cry and that he is scared, and thereafter this child does cry and states that he is scared.
It appears that the mother’s affect fluctuates throughout the 2 September conversation because at some points she is recorded as laughing. After stating again that the older child is scared, according to the recording the child starts crying and is then effectively cross-examined about why he is scared. At other points of the conversation the child appears highly stressed by both parents making allegations and denials and incorporating both children into the conversation (a matter about which the expert had much to say), At other points in this conversation, the older child appears quite confused. For example, after expressing that he was scared and upset the older child asks the father “and when am I going to see you on Father’s Day”.
In determining the likely reliability of the older child’s complaints I also attach weight to this child having previously made complaints about the father’s conduct in late June 2020 which he subsequently withdrew. It is clear from the recorded conversations at that time (which are also very disturbing in the manner in which both parents incorporated the children into their dispute and placed pressure on them) that the mother did not believe the allegations then made against the father.
I also consider other matters that suggest the older child’s reports are unlikely to be reliable are that this child made other complaints about the mother herself which appear to be groundless and the father’s unchallenged evidence that the mother’s former partner told him that the mother coached the older child to make a false complaint in late June 2020.
A further matter to which I attach some weight in determining the likely veracity of the older child’s allegations of assault is the context in which these allegations first emerged. The allegations against the father were first made in late June 2020 at a time when the mother had not only agreed for the older child to spend more time with the father than provided for under the interim orders then in place, but was asking the father to have this child spend even more time with him than the father had agreed to. It is also to be remembered that the mother continued to facilitate this additional time with the father including for overnights in July and August 2020 after the first allegations were made, albeit that they were subsequently withdrawn.
The tenor of the mother’s complaint about the father’s conduct leading to 2 September 2020 as can be gleaned from the conversation on that date, is that she maintains the father does not show the same commitment towards spending time with the older child as the younger child and that she had been required continuously to insist that the father have the older child in his care more regularly. The mother alleges many times during this conversation that the father does not want the older child at his house, consistent with one of the themes in her case as a whole that the father is not authentically interested in the older child which she contends is evidenced by his application that this child spend minimal time with him.
The mother’s comments in this regard in the 2 September conversation are consistent with the father’s affidavit evidence that although she opposed his interim application to spend time with the older child when that application was considered by the Court in March 2020, her position since this time has shifted dramatically. Since that time it is the father’s case that the mother wanted the older child to spend every second weekend with him and that she became angry when the father was not keen for this to occur as he wished to proceed gradually to ease both children into spending time with him. The father deposes in particular to a changeover event on 17 June 2020 in which the mother berated him at length including threatening to suspend the older child’s time with him because he would not have the older child every second weekend.
All of the foregoing matters provide some context for the making of the allegation that the father assaulted the older child which I consider relevant to an assessment of its reliability especially having regard to the expert’s evidence about the mother’s reactive parenting style to which I will return.
I also attach some weight to the fact that the mother simply allowed the older child to make his own decision about spending time with the father after the allegation was made a second time in August 2020, rather than seeking to have the orders for that time suspended. In my view, if the mother genuinely believed that the father posed a threat to the older child or that the allegations of him having struck this child had substance, such an application would have been made. This is consistent with the mother’s evidence under cross-examination and her case as a whole that she does not believe that the father did assault the older child or poses an unacceptable risk to either child on that basis, and only opposes an order for this child’s time with the father as that it is this child’s clear expressed wish.
It is also curious that the mother does not raise concern about the father physically assaulting the older child as presenting an unacceptable risk of harm to that child and did not seek a finding to that effect in the proceedings but presses for a finding that the father did assault the older child. The mother also proposes orders with respect to the younger child that will see him spend substantial and significant time with the father, which I consider most unlikely if she has a genuine belief that the older child had been assaulted by the father.
While it appears that the older child has repeated similar allegations about the father having assaulted him in various other contexts including at school and to counsellors, I do not consider the fact that a child repeats an allegation as necessarily indicating that it is more likely than not to be reliable. As stated, I also note that this child has made allegations along similar lines against the mother, which neither party suggests is reflective of the truth.
In summary, the only evidence that the father assaulted the older child is the complaint made by the older child himself. In circumstances where there is a lack of clarity about what the child alleges, this child has made similar complaints which have been withdrawn in the past and having regard to each of the other foregoing matters that I consider affect the reliability of that account, together with the context in which the allegation arose and the actions of the mother since the allegation was made, I am not satisfied as to its reliability. The father gives sworn evidence that he did not assault the child which was not challenged under cross-examination. In the foregoing circumstances I am not satisfied to the requisite standard that the father assaulted the older child on any occasion.
the expert evidence
The Expert’s report - May 2019
The expert, a child, family and adult psychiatrist, interviewed the parties and family members for the purposes of preparing a report over three days in April 2019.
When interviewed, the mother’s other child (a boy then aged 11) and the older child then aged six, lived with the mother full time. The older child had at that time recently rekindled his relationship his father (the second respondent) and was then spending every Saturday with the second respondent and this child’s paternal grandmother with the occasional sleepover. The younger child was living in a roughly equal shared care arrangement between the mother and the father.
The mother told the expert that until six weeks prior to the assessment she had had a really good relationship with the father and had no issues of concern. She reported then-current difficulties in co-parenting the younger child due to a lack of communication between herself and the father. At that time, the orders sought by the mother were along similar lines to her proposal at final hearing that the younger child live with her and spend time with the father each alternate weekend and for half of school holidays. She opposed the older child having any contact with the father.
The expert records that the mother reported that all of her children had been born prematurely which she related to her developmental exposure to sexual abuse which she understood had caused cervical incompetence. Although she reported a number of physical challenges for younger child associated with his prematurity, the mother described this child when interviewed as a happy little boy who had not demonstrated other risks of prematurity except for some communication difficulties.
The mother reported that the older child who was born three months premature had many significant physical difficulties as a result of his prematurity. This child had required numerous medical and allied health interventions throughout his life. At the time of the assessment he was described by the mother as a very intelligent and switched on child who was physically rather than mentally disabled.
It is recorded by the expert that when asked about her mental health, the mother readily identified herself to have suffered from post-traumatic stress disorder (“PTSD”) with flashbacks to her childhood. Although the expert informed the mother that it was not necessary that she provide an account of her childhood trauma if she did not wish, the mother did provide that account in a distressed state. The mother reported being sexually assaulted multiple times a week by her mother’s brother between the ages of two and 10 and described being locked in her room for the entirety of her childhood and being raised without love affection or trust. She reported that her mother, a single parent, had been sadistic and physically abusive and described that she had spent her entire life looking for love and to feel safe which she understood contributed to her unstable relationship history.
When asked about other psychiatric symptoms, the mother reported an overdose with sleeping pills in 2008 which she did not view as a serious suicide attempt and denied otherwise having been suicidal or any history of deliberate self-harm. When specifically asked about her use of alcohol, the mother acknowledged that at times she had used it to calm down and on a few occasions had used alcohol to excess but denied that the children had ever been placed at risk. As anxiety and depression had been also identified in the mother’s records the expert asked her about these matters. The mother reported hyper-vigilance and excessive startle responses which were identified as relating to the PTSD. The mother also identified intermittent depressed mood and reported upon various medications she had been prescribed at various times.
The mother reported behavioural problems including running away during her primary school years. When asked about her criminal history,[6] the mother described it as just fraudulent behaviour which she was not willing to discuss any further.
[6] The mother has been charged and found guilty of dishonesty offences on two occasions; in 2009 and 2017 (relating to conduct in 2014).
The mother claimed to have left the father as a result of his financial abuse and had engaged with a domestic violence counsellor following separation. The mother claimed that she no longer had difficulties managing her emotions as she was no longer triggered by the father’s conduct in the house.
Although when asked about her support network, the mother identified a long list of friends and support of family, she no longer had contact with her father or mother and regarded her step-mother as her primary support. Nonetheless, she arranged for the paternal grandmother of the older child to attend the assessment for support.
The mother outlined her long and complicated history of relationships with the four fathers of her children. She described the second respondent (the father of the older child) as a person with whom she had bonded as both were victims of child sexual abuse. Despite their chaotic and abusive relationship, it is reported that the mother viewed the second respondent as “the only one to really understand everything about [her]”. She told the expert that both she and the second respondent had anger issues and that she had lost count of the drunken arguments which characterised their volatile relationship.
The mother related that when she realised that the older child would be handicapped for the rest of his life she separated from the second respondent. The expert notes that the mother omitted to mention that her other child (the second oldest) had disclosed being the victim of sexual abuse at the hands of the second respondent.
It is reported that the mother felt supported by the father earlier in their relationship as he had qualified as a health professional and come from a wealthy intact family, was smart and had received great schooling. The mother reported that it was not until she was pregnant that “the cracks started to show” and she was particularly concerned that despite her high-risk pregnancy the father expected her to work and support the family. This caused her to feel insecure as she had assumed that they would live together and that he would support her.
The mother alleged when interviewed that the father had been “extremely financially abusive” and “extremely controlling”. The mother reported that in 2017 the relationship “went sour” and in this context reported the father playing on her triggers and her other child disclosing that the father watched her on surveillance cameras installed in the home. As a result, she immediately arranged for alternate accommodation and left within the week.
When interviewed the father reported living on his own and not then being a relationship.
The father reported behavioural difficulties in the mother’s other children and impairments in the mother’s parenting capacity in relation to each of her children. In addition to behavioural problems exhibited by the mother’s other child the father reported this child misusing the mother’s credit card, being disrespectful amidst the “turmoil” in the home and having to have his adult teeth removed at the age of 10 due to decay as the mother was unable to get him to brush his teeth. The father also reported this child being significantly afraid of the older child’s father (the second respondent) who the father repeatedly described as abusive and a violent gambler.
The father expressed suspicion about the recent claimed reconciliation between the mother and the second respondent which the father considered as an action designed to cut him out of the older child’s life. In this context, the father expressed concern about the older child’s confusion, asserting that he had raised the older child as a baby and had understood that the second respondent would never be involved given the serious domestic violence said to have been perpetrated by him.
Although the father was of the view that the current shared care arrangement with the younger child was working well, he questioned the mother’s capacity to prioritise this child’s needs as a primary carer. He asserted that the mother was ill-prepared to attend to the children’s educational needs and asserted that she lived an unstable life. He also denied the mother’s accusations that he had been a bully and viewed her claims that he was financially and emotionally controlling as “outrageous”. In this context, he referred to the mother’s psychologist report dated April 2018 which identified her as then being in “a loving relationship now after a history of abusive relationships”.
When asked about the children, the father stated that it was “beyond ridiculous” that the mother claimed the older child was fearful of him. He reported last seeing this child at changeover six weeks previously and this child declaring “I love you” to him and not wanting to leave. The father expressed his love for the older child and said that he had cared for him as a baby which had been his “first state of fatherhood”. The father readily identified this older child’s physical disability and said that prior to July 2018 he had attended every one of this child’s appointments.
The father reported that the parties’ separation resulted from a dramatic change in the mother’s behaviour in mid-2018 and that she had become paranoid and forgetful as a result of her increased drinking behaviour and due to a change in medication. This was a matter that the mother refused to discuss with the expert. The father said that he had installed security measures in the home to enable video surveillance as a result of the mother’s concern that the second respondent had broken into their home, a matter which she had previously reported to the police. The father viewed the mother’s claims of domestic violence as outrageous and said that he had pleaded with her not to leave. He said that he took action in retaining the children in his care (in June 2018) in an effort to cause the mother to negotiate with him about her unilateral decision to relocate with the children to another part of Sydney.
The expert acknowledged that the disruption in the relationship between the children if the younger child were to live primarily with the father would be “a significant loss” for the older child. The expert was also critical of the father’s view that the children were no longer especially close since separation (a view which the expert considered to be not empathic) but remained firm in his opinion that the relationship between the two children would be maintained if orders were made in accordance with his recommendation. The expert also explained clearly that his opinion would be different if the only considerations relevant to the best interests of the children related to schooling and the maintenance of the sibling-bond between the children. If this were the case, the expert said his recommendations would not be appropriate and he would not be making them.
In other words, the expert recognised the importance of the sibling bond and the younger child’s connections to his mother and even went so far as to acknowledge that the recommendation he made, which is adopted by the father, is the “least detrimental” parenting arrangement (as opposed to the arrangement which is in the children’s best interests). The tenor of the expert’s evidence, is that he was required to consider all of the best interests considerations not only the issue of sibling relationships. The “profound differences” in the two households and the capacity of each of the parents to provide for the children’s developmental needs, were particularly weighty in the expert’s opinion.
In my view the most significant change for each of the younger child if orders are made that he live with the father is the more extensive separation of this child from the members of the maternal household and in particular the mother and the older child. This issue has been dealt with at length.
Otherwise, in my view, the nature of the change in circumstances that would be brought about if orders are made as sought by the father is not nearly as extreme as contended by the mother. The younger child is already spending significant time in the father’s home, living there a little more than for half of each week. The father is also responsible for taking this child to and from school including on the days when this child is living with the mother, some distance from that school. The child is familiar with the father’s partner and her children, and spoke of them affectionately and warmly when he was most recently assessed by the expert. He has already spent a considerable period of time at a school near the father’s home and there is no evidence to suggest he is not settled there.
Although the expert opined that there were additional challenges for the father’s partner related to her concurrent family law proceedings which he considered would be a source of adversity, the expert considered that these matters would less directly impinge upon the younger child’s developmental experience.
If orders are made as sought by the mother in respect of the younger child a significant change in this child’s circumstances will be brought about. The younger child has been living in the father’s home for a slightly longer period each week than in the mother’s home (four nights with the father and three nights with the mother) for some years. He commenced school at the beginning of the 2022 school year and a move to live with his mother will bring about the commencement of the new school. Having said that, as noted when ex tempore reasons were given for the orders in relation to this child’s schooling in January 2022 I accepted the opinion of the expert that this child will be less affected by moving to a school attended by the older child than if he were to move from the school he attended with the older child to a new school.
It is likely given the nature of the younger child’s relationships with other household members and the father in particular that he will miss the father as his time with him will be significantly reduced.
The change in circumstances for the older child that would be brought about if orders were made for him to spend time with the father are in my view significant due to the current insecure relationship between this child and the father and as this child has not developed any relationship with the father’s partner or her children. However, both the proposals of the father and the ICL would see the older child spend time in the father’s household only when the younger child is also present, and under the ICL’s proposal it will be gradually introduced and supported by family therapy in accordance with the expert’s recommendations.
All of the forgoing matters favour the proposals of the father and ICL over the proposal of the mother.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
From the time the parties separated, the father has persistently sought to be involved in decision-making in relation to the children and to spend time and communicate with them. I am also satisfied that he offered to assist the mother financially at around the time of separation in an effort to have her remain living in the area where the family had been living prior to separation so that he could continue to be involved in the children’s lives.
It is most unfortunate to say the least that when the father was not able to achieve his goal in this regard and the mother moved some distance away taking the children with her, that he then withheld the children from the mother, unilaterally retained them in his care and cut off contact from the mother. The expert describes this as being an action which set off the “tragic course of events” that followed.
Fortunately for the younger child, despite the parties’ extremely acrimonious relationship following separation, they were able to reach agreement about a parenting arrangement which ensured that this child’s relationship with each of his parents was maintained and the parties were both able to play a meaningful role in this child’s life as envisaged by this consideration.
Submissions made on behalf of the mother in relation to these matters are curious. The father’s efforts to be involved in decision-making, spending time and communicating with the younger child including through his proposals for final orders (that are consistent with the expert’s recommendations) are described as the father’s wish to dominate the younger child’s time with him. Elsewhere, it is submitted that the father does not have a relationship with the older child and that his interest in this child is only collateral to his efforts to be “the permanent parent” for the younger child.
The matters in these subsections are both directed at the ‘parents’ of children for whom parenting orders are sought. It is trite to say that the father of the older child has effectively declined to take any opportunity to participate in long-term decision-making regarding this child or to spend time or communicate with him. He has failed to fulfil any obligations to maintain this child.
These considerations which are directed at parents may be considered with respect to the father even though he is not a parent to the older child through the application of s 60CC(3)(m), as I consider the extent to which the father has sought to be involved in the older child’s life in this manner as a relevant fact or circumstance in relation to the best interests of this child.
As explained upon earlier in these Reasons, when considering a submission advanced on behalf of the mother that the father is not serious in his application in relation to the older child and has no interest in this child, there is insufficient evidence on which I could make such a finding. I consider it a weighty matter that the father has been persistent since separation in seeking orders that the older child spend time and communicate with him, and that he agreed at the mother’s request to spend more time with this child in the first half of 2020 than provided for in the interim orders. The father has not taken the opportunity to participate in long-term decision-making regarding this child as it has been agreed between the parties that the mother should exercise sole parental responsibility for this child.
Against the foregoing background, it is difficult to understand the mother’s attitude to the father’s application to spend time with the older child. There are also repeated submissions in respect of the close relationship between the children (being a matter about which there can be no doubt) and the expert’s opinion that it will benefit both children to spend more regular time together. Despite this evidence, the mother resists orders that would see the older child spend any time with the father except with her agreement and effectively criticises him for making such an application. The mother takes this approach even though the father’s proposed orders, if made, will bring about a result that the children spend three out of four weekends together (and on the ICL’s proposal for a short time they will spend every weekend together).
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
Neither parent seeks orders that the current shared care arrangement for the younger child continue or proposes that there be mid-week time between this child and the parent with whom he is not primarily living.
There are some logistical complications for the parenting arrangements for the younger child which are likely to increase as this child grows older and may participate in extracurricular activities and the like given the geographical distance between the parties. However, neither party contends that these are insurmountable difficulties, or that any expense in this regard arises and there is no suggestion that the younger child’s right to maintain personal relations and direct contact with both parents on a regular basis will be affected.
The older child will not under either proposal under consideration maintain personal relations or direct contact with his father, but that is not due to matters relating to practical difficulty or expense of spending time with him but rather as a result of this child’s father effectively withdrawing from the proceedings.
Capacity of each parent and any other person to provide for the children’s needs
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent, and other relevant characteristics of the children
Attitude to the children and responsibilities of parenthood demonstrated by each parent
In my view, having regard to the evidence as a whole and especially the opinion of the expert these are particularly salient matters to be considered in this application. There is considerable overlap between each of these matters.
It is a theme in both of the expert’s reports which was further developed under cross-examination that the expert identified that the mother’s parenting capacity has been impaired in the context of her personality vulnerabilities, vulnerable mental health, unstable relationship history, antisocial behaviour and previous binge drinking, which had contributed to her emotional dysregulation. The expert identified that the origin of these vulnerabilities related to the mother’s developmental exposure to sexual, physical and emotional abuse and neglect throughout her childhood, matters which the mother reported to the expert when assessed. The expert considered that the mother’s antisocial and borderline personality traits had contributed to her unstable relationship history and fraudulent behaviour which had been a recurrent problem and had contributed to her depressed and anxious mood.
Although the mother reported a dramatic improvement in her mental state during the 12 months prior to the expert’s first assessment in April 2019, she had not adequately addressed her vulnerable mental health which the expert opined in part was a function of her stressful and unstable family circumstances. The expert identified that the mother’s challenging obstetric history and the prematurity of her children had contributed to the demands placed upon her as a mother as her children had special needs relating to their prematurity and complicated birth history.
Although none of the foregoing matters were challenged under cross-examination and are based to a large extent on matters which the mother herself reported to the expert, it is reported that when assessed on the first occasion the mother became defensive and aggressive as she experienced the expert as being undermining and critical, which the expert opined was reflective of her underlying emotional vulnerability.
In his first report, the expert also identified strengths in the mother’s capacity, in particular, that she was loving and caring in her interactions with the children and had been committed to attending to their general development and special needs. The expert recorded that the school principal provided a positive account of the children’s general level of care and the mother’s communication with the school.
In his first report, the expert also identified the father as a committed and motivated parental figure and as having a high level capacity to attend to the children’s developmental needs. The father was not identified by the expert to have any current or previous history of mental illness or personality disorder and had not experienced emotional or behavioural issues which had impacted upon his general functioning or parenting capacity. The expert assessed that the father had prioritised the children’s developmental needs during his relationship with the mother and at that time (which the expert described as a “critical period”) the father had become a significant attachment figure for both children.
Having made these positive observations about the father, the expert also observed that the father acted in a precipitous manner by removing the children from their mother (just after separation), which the expert opined could be seen as “a controlling and disruptive act detrimental to the children’s wellbeing”.
The expert also reported on the mental state both parents insofar as it related to parenting issues as requested. Although he did not identify the mother as then-currently fulfilling a diagnosis for any mental health condition, it was recorded that as reported, the mother had previously experienced symptoms of post-traumatic stress disorder (“PTSD”) related to her developmental exposure to trauma as described. The expert opined that she subsequently developed personality vulnerabilities as evidenced in her emotional dysregulation and unstable relationship history.
The expert further opined that exposure to the mother’s agitation and out of control behaviour would be distressing for the children to witness and would have resulted in emotional insecurity which will further expose them to recurrent experiences of separation and loss. The expert reported that this behaviour and the children’s response was directly observed during the first assessment.
The expert also identified in the documentation that he perused a longstanding history in the mother of deceptive and misleading behaviour including conduct that led to her being charged and found guilty of dishonesty offences on two occasions, matters which she was not prepared to discuss with the expert. The expert opined that such antisocial behaviour will impair the mother’s parenting capacity should it continue, and raised in this regard the importance of the mother accurately representing the children’s experience when seeking therapeutic intervention for them. In this regard, the expert identified some ongoing misrepresentation of the children’s experience in seeking such intervention, a matter which was also not challenged under cross-examination. The expert did record, however, that the school principal had also identified that the mother had been responsive to communication from the school and that the children’s needs had been appropriately attended to.
In relation to the mother’s forensic history associated with her antisocial behaviour, the expert also opined that this will be an inappropriate model for the children should they be exposed to it and the associated consequences.
As explained previously when setting out the details of the expert’s supplementary report, the expert maintained the opinions he had expressed in his first report and other than making some additional recommendations, in summary he said that there was no significant change to his previously expressed opinion and recommendations.
The expert’s oral evidence is dealt with at some length earlier in these Reasons. In relation to the issue of parental capacity, the expert gives evidence concerning the harms that may arise if a child develops an unstable, insecure sense of self which arises from a child’s repeated experiences of separation and loss (see [183]-[184]]). The expert identified that neither the mother or her current partner understood the importance for the children and the older child in particular of maintaining significant attachment relationships.
Further, the expert made it clear that although there were challenges with his recommendations having regard to the children’s relationships and the sibling relationship in particular, one of the most salient factors for him in making the recommendations that he does relates to parental capacity. As noted in [198] of these Reasons, the expert said that if he held the view that the mother had the capacity to provide the same level of consistency, care and attention to all aspects of both children’s developmental needs as the father then he would not be making the proposal that the younger child live primarily with the father.
As set out in [199] of these Reasons, the expert identified the profound differences in the two households and the expert’s assessment of the capacity of the parents to provide for the children’s developmental needs. He reiterated his concerns about the mother’s capacity for a range of issues relating to the nature of the history of her relationships, the nature of her approach to parenting the children in her care, the maintenance of the children’s relationships in a stable manner with significant figures in the children’s lives and restated that he did not have the same concerns about the father. Further explanation of these matters are dealt with at [199] and [202] of these Reasons.
Submissions made on behalf of the mother in relation to the foregoing matters are that there was much criticism levelled directly and indirectly at the mother for having various children by different fathers and a finding is sought to this effect. It is also submitted on the mother’s behalf that the Court should find the mother to be a loving and caring person who is child-focused (and that the same could not be said of the father), that there is no evidence to support any proposition that the mother is anything other than caring, loving and attentive and that she has provided and continues to provide proper and loving care to all of her children.
It is further submitted on the mother’s behalf that in his supplementary report, the expert did not identify any concerning behaviour in relation to the younger child when interviewed in the mother’s home. Particular attention is also drawn to the expert’s observation that “there will be challenges ahead with the arrival of a new baby [the mother’s fifth child who was at that time soon due to be born]”. In this regard, the mother submits that there is no evidence that she would not handle the challenges of raising her youngest child and to justify the separation of the other children. The suggestion that the expert’s criticism of the mother is principally related to her having children from different fathers was repeated in the mother’s written and oral submissions.
The foregoing submissions made on behalf of the mother do not reflect the expert’s evidence as a whole. It is simply not correct to describe the expert’s evidence with respect to the mother’s parenting capacity and the circumstances of her household as a criticism principally related to the fact that she has had five children to five different fathers or to contend that such criticism is unfair. The expert explained in significant detail in his first report and especially in oral evidence as previously summarised all of the matters that he took into account in assessing the mother’s parenting capacity, reactive parenting style and the risks associated with these identified matters for the children. The expert did identify the mother’s loving and caring attitude towards the children which is not in dispute, but explained why the range of other matters associated with the care of all of her children supported his expressed opinions and recommendations.
I do not make the findings just outlined sought by the mother as such findings are not supported by the evidence as a whole. I attach particular weight to the expert’s opinion and to these matters under consideration in determination of orders that are in the children’s best interests and note that they favour the parenting arrangements sought by the father and ICL for both children.
The special needs of the older child which have been touched upon in these Reasons are of relevance. In my view, the father’s evidence indicates that he and is his partner are aware of those needs and in the past the father has been involved in ensuring that those needs have been met. The mother’s opposition to the older child spending time with the father does not appear to be related to any suggestion that the father lacks capacity in this regard.
It was submitted on the mother’s behalf in final submissions that the father lacks an appreciation of the emotional impact upon the younger child to be separated from his mother and brother and that the father’s evidence demonstrated a lack of understanding of the relationship between the children. I share the concern of the expert about the father’s assessment that the relationship between the children is not close. It is clear, however, that this matter was not of such significance to cause the expert to change his view and I agree with the expert’s assessment that there are many other significant matters in the proceedings to be taken into account that outweigh this issue of concern.
I have no doubt that each of the parties has great love and affection for the younger child and that similar observations may be made about the mother’s attitude toward the older child. The father is not a parent of the older child but has demonstrated a caring and loving attitude to him and took on parental responsibilities for this child when the parties’ relationship was intact and for some time after separation.
The father has, in my view, justifiably been criticised for withholding the children from the mother at around the time of separation, which in the opinion of the expert is the action that triggered the tragic chain of events for the children. However, I consider that this action, albeit serious, was isolated and does not reflect the father’s general attitude towards the responsibilities of parenthood.
Family violence
Although both parties make allegations that the other engaged in family violence, neither seeks findings in this regard and it is not submitted by either of them that this matter will impact upon the orders that they seek.
Any other matter the Court considers relevant
The father sought orders in relation to his identity as the father of the younger child and that the child’s name be changed so that it includes only his surname. In the course of the proceedings it became apparent that neither party objects to the child’s surname being hyphenated and incorporating both parents’ surnames.
The final proposal of the ICL includes an order as agreed to by the parties in relation to these matters.
CONCLUSION
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[10] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[10] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
I do not need to consider the issue of parental responsibility for the older child as that child’s father is not participating in the proceedings. There are more than reasonable grounds to believe that the father of the older child is the perpetrator of family violence so the presumption of equal shared parental responsibility does not apply. In any event the mother is the only parent seeking orders for parental responsibility of this child and the parties agree that such an order should be made.
Both the mother and ICL propose an order that the parties equally share parental responsibility for the younger child. It is submitted that such an order is in accordance with presumption under s 61DA.
The father proposes that he hold sole parental responsibility for the younger child. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the father must mean that he would have all the duties, powers, responsibilities and authority which, by law parents have in relation to this child and that the mother would have none of the duties, powers, responsibilities and authority with respect to this child. It is the father’s contention that the presumption for equal shared parental responsibility is rebutted and that it is not in the younger child’s best interest that the parents equally share parental responsibility for him.
In considering the question of parental responsibility for the younger child and whether the presumption has been rebutted, I attach particular weight to the consistent evidence between the parties about their inability to reach agreement about a whole range of matters to do with the arrangements for the younger child. I also attach weight to their consistent evidence about the intense level of dispute between them and the ongoing and mistrust of the actions of the other parent which continued during the adjourned period between January and March 2022 and resulted in the proceedings being re-opened and further evidence being adduced in relation to these matters.
I am also of the view that the evidence of the expert is weighty when considering the issue of parental responsibility. While the expert felt that ideally it is in the younger child’s best interests for the parents to jointly exercise parental responsibility his prevailing view was that the parents do not have the capacity for joint decision-making. The expert ultimately expressed concern that there would be ongoing disputes regarding all aspects of the younger child’s experience if an order for equal shared parental responsibility were made. I also have regard to the expert’s opinion that the children would have experienced considerable stress when the parties previously involved the children actively in their dispute and the expert’s concerns that this may continue in the future.
In all of the foregoing circumstances I am satisfied that the presumption of equal shared parental responsibility is rebutted and that it is in the best interests of the younger child for the father to hold sole parental responsibility for him.
Other parenting orders
I am of the view that the regime of orders proposed by the father for the younger child is in this child’s best interests having particular regard to the nature of this child’s relationship with each parent and other significant persons, the likely effect of a change in this child’s circumstances if orders were made as sought by each of the parties, the capacity of each parent to provide for this child’s needs and the lifestyle and background of this child and each parent.
There are, however, orders proposed by the ICL which I consider are proper and more consistent with the younger child’s best interests for the reasons earlier explained. In particular, I consider the ICL’s proposal concerning changeover as appropriate and more consistent with the expert’s recommendations.
I also consider, having regard to the relevant best interests considerations and in particular the nature of the older child’s relationships with each parent and other significant persons and each party’s capacity to meet this child’s needs, that it is proper and in the older child’s best interests for orders to be made that he spend time with the father. I consider the ICL’s proposed orders for a gradual increase in this child’s time with the father (which initially occurs more frequently and coincides with the younger child’s time with the father) as most consistent with the expert’s recommendations. The father’s proposal that this child spend some school holiday time with him is also preferred as more consistent with the expert’s recommendations.
The expert also recommends that the older child’s reintroduction to the father and the parents’ relationship generally will be improved for the benefit of the children through engagement in family therapy. Having regard to the evidence as a whole I consider this order proper and in the children’s best interests. For this reason, I propose making the order as sought by the ICL in this regard.
For all of the foregoing reasons, I make the Orders set out at the forefront of this Judgment.
I certify that the preceding three hundred and nine (309) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 2 September 2022
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