Cunningham & Riley

[2016] FCCA 21

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUNNINGHAM & RILEY & ANOR [2016] FCCA 21

Catchwords:
FAMILY LAW – Interim parenting – where children resisting time with their father – where there is consent orders for time – whether any evidence to justify changes to these consent orders – where children need to be protected from exposure to parental conflict and involvement in these proceedings – how third parties can be bound by orders against parents – need for ongoing therapy.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MR CUNNINGHAM

First Respondent: MS RILEY

Second Respondent: MR BROOK

File Number: WOC 845 of 2015

Judgment of: Judge Altobelli

Hearing date: 20 December 2015

Date of Last Submission: 10 December 2015

Delivered at: Wollongong

Delivered on: 22 January 2016

REPRESENTATION

Solicitors for the Applicant: Johnson Horsley Lawyers

Counsel for the First Respondent: Ms Gillies

Solicitors for the First Respondent: Lough & Wells Lawyers

The Second Respondent failed to appear

Solicitors for the Independent Children's Lawyer: Jennifer Weate & Associates

ORDERS PENDING FURTHER ORDER

1. The parents be hereby restrained from:

   (a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Child/ren.

   (b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.

2. The parents are to use their best endeavours to ensure that any adult person who is emotionally close to the Children provide a written undertaking to the Court, in a form prepared by the Independent Children’s Lawyer and to the effect of order 1 above, as a pre-condition to their spending time with the Children.

3. The parties are at liberty to re-list the matter on 7 day’s notice as regards interpretation, implementation or enforcement of these Orders.

4. The Independent Children’s Lawyer is to forthwith make arrangements for the family, consisting of the parents and both children, to participate in family therapy or counselling, the focus of which is to:

   (a)Unravel any distorted pattern of family relationships that put the child/children’s psychological development at risk;

   (b)Support the parents in rebuilding their parenting capacities;

   (c)Shift any child’s or parent’s distorted, rigidly held, polarised or defensively split views of one parent into more realistic and measured views rooted in actual experience;

   (d)Develop for the children a strong, positive authentic and whole sense of self and the capacity to form healthy intimate relationships with others;

   (e)Conduct a careful clinical assessment to identify the needs of this family, and whether a child or the children have been estranged or alienated from one parent;

   (f)Provide a brief report to the Court via the Independent Children’s Lawyer every 3 months which might include recommendations about further orders of the Court, or other interventions;

   (g)Achieve such other ends as the therapist or counsellor considers appropriate.

5. The parents are to do all things necessary to implement the preceding orders, and to bear the cost of such therapy or counselling in equal shares, but using a Mental Health Plan if that is so reasonably available to them.

FURTHER ORDERS

1. The Court requests that, if the Independent Children’s Lawyer has not already done so, the Independent Children’s Lawyer speaks with the Child, X born (omitted) 2003, to explain that:

   (a)her parents agreed that it was important for her to spend time with her father in accordance with the interim orders made on 8 September 2015; and

   (b)the Court has listened carefully to her Mother’s concerns, but nonetheless decided that it was still important for her to spend time with her father in accordance with the orders.

2. The matter be adjourned to 4 April 2016 at 2:00pm for Mention.

3. Order 9 made 10 December 2015 be vacated.

4. The matter be listed for a 4 day Final Hearing on 23 – 24 February 2017 and 27 – 28 February 2017, commencing at 10:00am in the Wollongong Registry.

5. The parties are at liberty to file terms in the Registry for the purposes of orders being made in Chambers regarding the appointment of an Expert.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 845 of 2015

MR CUNNINGHAM

Applicant

And

MS RILEY

First Respondent

MR BROOK

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a difficult case.  It is about two children, X, born (omitted) 2003, who is 12 years old, and Y, born (omitted) 2009, 7 years old.  The Court was asked to make interim orders in relation to the children.  The nature of the dispute and the seriousness of the allegations made by each parent (and those aligned with them) against the other are very severe.  This is not a matter suitable for interim determination.  

2. What this case needs is the very thing that this court cannot provide due to its lack of resources: a prompt hearing where all the evidence, including appropriate expert evidence, can be properly tested.  Moreover, nothing would be gained by transferring this to the Family Court of Australia, whose predicament (at least in New South Wales) may be no better.  A poorly funded Family Law Court system has let this family down.  In all likelihood, by the time this matter is heard commencing 23 February 2017 (the earliest realistic date available) no orders are likely to make a difference in the lives of these children. The trajectory for this family is not a good one.  The long term impacts of the loss of a major parental relationship for the children is potentially very severe.

Background

1. Y currently lives with his mother and spends time with his father.  He is the parents biological child.  X also lives with her mother and is supposed to be spending time with the Father pursuant to consent orders the parents entered into, but she is not in fact doing so.  X is the Father’s psychological child.  Her biological father, Mr Brook, is aware of the proceedings, but has chosen not to participate.  Where the term “father” is used in these proceedings in reference to X it means psychological father.

2. The Applicant in the proceedings is the Father.  He is 38 years old and is employed as a (occupation omitted).  The Respondent is the Mother.  She is 34 years old and describes herself as undertaking home duties.  The Mother suffers from an acquired brain injury which occurred as the result of an accident that happened when she was about 13 years old.  The parents commenced cohabitation in (omitted) 2007 and separated in July 2015.  On any account of the relationship it was a turbulent and sometimes unhappy one.

3. On 8 September 2015 the parents entered into consent orders.  It is important to record that both were legally represented at this stage by experienced family lawyers.  The orders that they entered into by consent about the children are reproduced below:-

   BY CONSENT BUT WITHOUT PREJUIDICE TO THE PARTIES’COMPETING APPLICATIONS AND PENDING FURTHER ORDER OF THE COURT:

   1. That the father shall spend time with the child Y born on (omitted) 2009 and X (“X”) born (omitted) 2003 as follows:

   2. With Y each Saturday between 10.00am and 4.30pm until 3 October 2015;

   a) From 3 October 2015, with Y and X each alternate Saturday from 10.00am until 4.30pm;

   b) From 10 October 2015, with Y from 10.00am Saturday until 4.30pm Sunday each alternate week;

   c) Notwithstanding any other provision in these orders, on 20 September 2015 with Y and X from 10.00am until 4.30pm;

   d) From 5.00pm until 7.45 each Tuesday with Y, commencing on 15 September 2015;

   e) Reasonable telephone contact each week with X and Y, with such time to include each Thursday between 5.30pm and 6.00pm, with such a call to be initiated by the father and that the mother shall do all things to facilitate the child speaking with the father during that period. The mother shall ensure that the children have reasonable privacy when speaking to the father and shall not cause the conversation to take place via speakerphone;

   f) Contact at other times as may be agreed between the parties in writing, from time to time.

   g) The Court notes that the father would like to increase the time he spends with X referred to in 1 to coincide with the time he spends with Y (including overnight time) but the mother is not prepared to agree to that as at today’s date.

   3. That to facilitate changeovers, the parties shall meet at (omitted) at (omitted) at the start of contact periods and shall meet at McDonalds at (omitted) at the end of contact periods, or any other venue agreed to by the parties in writing from time to time.

   4. The Court notes that the mother hereby authorises the father to speak to any counsellor, doctor, or any other therapist or specialist in relation to the treatment, therapy or other intervention being provided to the children.

4. The Court recognises that the orders were entered into without prejudice to the parties’ competing application and pending further order of the Court.  Nonetheless, the inescapable conclusion is that on 8 September 2015, both parents agreed that it was in the best interests of the children that both Y and X spend time with their father.  The Mother had not yet filed a Response, so her proposal about the children was not known to the Court at that time.

5. The Mother’s response was ultimately filed on 4 December 2015.  By that point she was proposing that Y only spend supervised time with his father at Catholic Care, (omitted), or any other agreed alternative, and that X spend time with her father subject to her wishes.  Within three months, therefore, the Mother’s perception of what was in the best interests of the children had changed dramatically.  By the time of the interim hearing before me on 9 December, her proposal was as set out in her Response.

6. The Father’s Application, which initiated these proceedings, was filed on 20 August 2015.  The interim orders he sought proposed that both Y and X live with him, but spend time with the Mother each alternate weekend and during school holidays and special occasions.  In a formal sense, that continued to be his proposal at the interim hearing, but the actual presentation of this case, including his solicitor’s case outline, written submissions and oral submissions seemed to reflect a pragmatic realisation that the Court was unlikely to make the orders that he sought on an interim basis, having regard to the available evidence. 

7. The impression that the Court formed was that the Father preferred to spend more time with his children than the interim consent orders enabled, but certainly opposed the prospect of any reduced time.  Having regard to the evidence, this pragmatic approach was entirely appropriate.  Indeed, perhaps with the benefit of reflection, the very positional stance undertaken by the Father may have inadvertently contributed to the gross polarisation that has taken place in this case.

8. The cases advanced on each side can be briefly summarised.  Each alleges that the other has serious deficits in their parenting capacity.  Whilst, in fact, the Court’s preliminary impression based on the available evidence is that there is reason for disquiet in relation to both parents, there is certainly nothing that can be done about this on an interim basis. 

9. The Father says that the very good relationship that he had with both children before separation has been jeopardised and is under dire threat as a result of the Mother’s actions.  He says, in effect, that she is involving the children in the litigation and actively undermining his relationship with them.  The Father does not deny that X is resisting spending time with him, but rejects that proposition insofar as it relates to Y who, the Father says, enjoys his time with him.

10. By contrast, the Mother’s case is that both children are resisting contact with their father, and, indeed, that X may have rejected him.  She says, in effect, that the children have become estranged from him as a result of the way in which the Father behaved during the relationship and, indeed, afterwards.

11. There are very ominous signs about this litigation.  Both parents have filed a vast amount of affidavit material in support of their claims.  Each has called multiple witnesses to provide supporting affidavits.  Each seems to be recruiting others to join a team aligned with their view of what has gone wrong with this family and what must be done about it.  It is rapidly becoming tribal warfare.  Even so-called experts appear to have been recruited to the cause.  This must stop.

12. If there is to be any hope to mitigate and, if possible, repair the dysfunction in this family, it will be through therapeutic processes provided by a totally neutral, independent expert who is accountable not just to the parties but to the Court.  There must be a de-escalation of tensions.   The parents have to quickly disabuse themselves of any notion that, somehow, the making of legal orders is going to help.  Both parents need to start thinking to the long term, and not short term.

The Evidence

1. The Father relied on the following documents:

   ·Affidavit of Mr Cunningham filed 4 December 2015;

   ·Child Inclusive Conference Memorandum dated 26 November 2015;

   ·Initiating Application filed 20 August 2015;

   ·Notice of Risk filed 20 August 2015;

   ·Affidavit of Mr Cunningham filed 20 August 2015;

   ·Affidavit of Mr M filed 16 September 2015;

   ·Affidavit of Ms J filed 7 September 2015; and

   ·Affidavit of Mr S filed 7 September 2015.

2. The Mother relied on the following documents:

   ·Response filed 4 December 2015;

   ·Affidavit of Ms Riley filed 4 December 2015;

   ·Affidavit of Ms C filed 4 December 2015;

   ·Affidavit of Ms E filed 10 November 2015;

   ·Child Inclusive Conference Memorandum dated 26 November 2015;

   ·Affidavit of Ms M filed 9 November 2015;

   ·Affidavit of Ms P filed 24 October 2015;

   ·Affidavit of Ms Riley filed 13 October 2015;

   ·Affidavit of Mr N filed 6 October 2015; and

   ·Affidavit of Ms C filed 6 October 2015.

3. As will be seen from that list above, the Child Inclusive Conference Memorandum to the Court dated 26 November 2015 was before the Court.  In addition, documents that had been produced on subpoena were tendered, included from (omitted) school;  the Department of Family and Community Services;  Ms N, psychologist;  as well as correspondence between the parties’ lawyers.

The Applicable Law

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

1. Because s.65DAA refers to the best interests of the child, the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

2. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed “Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

3. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Discussion of the Evidence

1. There are some uncontested facts that can be discerned from the evidence.  The parents’ ability to communicate with, and trust of, each other is virtually non-existent.  Their relationship was tumultuous at times and unhappy.  There was conflict between the parents to which the children were often exposed.  The precise impact on the Mother, in terms of her behaviour and parenting capacity, of her acquired brain injury is unknown.  The Father is concerned about it, but no so much that he does not believe the Mother cannot adequately care for the children without supervision.  Indeed, his case is that for most of their relationship he worked full time and she cared full time for the children, although he was a very actively involved father.  And yet the Court has lingering doubts about this issue of the impact on the Mother’s parenting capacity of her injury.  She is surprisingly minimalistic about this issue in her Affidavit. 

2. Curiously, it is her Mother, that is, the maternal Grandmother, who actually provides more information about this issue than the Mother - itself a revealing fact.   Certainly, what expert evidence was attached to the Grandmother’s Affidavit of 1 October 2015 suggests that the injury the Mother suffered was a very serious one which impaired her brain function in many ways. 

3. These are matters that need to be further investigated by the Independent Children’s Lawyer.  For example, the Mother may well have been fully capable of parenting the children, notwithstanding her brain injury, within the supportive framework of a relationship with the Father, even if that relationship was turbulent, if not dysfunctional at times.  Once that supportive framework is removed, the focus turns to what has replaced it. 

4. Another issue to be considered in this case, in the fullness of time, is the impact of the Mother’s injury on her ability to properly recollect events.  It is interesting to observe some of the Mother’s own insights about her behaviour in her Affidavits.  She accepts, for example, that from time to time she can say inappropriate things.  She accepts that she can become stressed and anxious. 

5. Dr D, in his Report 8 March 2002, reports how one of the most serious consequences of her injury has been the change in the Mother’s personality, her loss of sensitivity and control over impulsive aggression and her tactless communications.  He refers to her loss of other frontal functions such as judgment and foresight.  The need for appropriate expert evidence is clear.  It is not surprising that both parents would concede the turbulence of their relationship at times.  The Mother, and those advising her, need to consider and confront some practical issues in this case.  At some stage, she will be the main witness in her case, and will have to face cross-examination.  There is a sense in which some of the concerns that the Father expresses about the Mother’s behaviour during the relationship resonate with the limited medical evidence already before the Court.

6. Whatever the evidence about this issue may well be in the fullness of time, the manner in which the Father’s solicitor presented his case at the interim hearing reflects the pragmatic reality that the Mother’s acquired brain injury is certainly no basis for reversing the existing, and longstanding, arrangements of her being the primary carer for these children.  If his case was based on some other contention, for example, that she was not supporting his ongoing relationship with the children, then the Father needs to recognise the alternative hypothesis is yet to be tested, and that is that his own actions contributed to the current dilemma.  The totality of the Father’s evidence, even if accepted in its entirety, would not justify making the interim orders that he seeks.

7. The Affidavit provided by Ms P, a clinical psychologist who has been working with the children since August 2015, is concerning at a number of different levels.  Her Report is comprehensive, at least in its purport.  She concludes on the basis of six counselling sessions with X, and four with Y, that both children are at further risk by having any contact with their father. 

8. In the solicitor for the Father’s written submission at paragraph 48, he provides a scathing critique of Ms P’s evidence.  It bears reproduction in these reasons for judgment:

   Ms P

   48. The report of Ms P would not be accepted by the Court as an expert report and no weight ought to be attached to its recommendations.

   ·Not written from a position of neutrality, clearly a self-serving document prepared at the request and direction of the mother’s solicitor

   ·The stage was set from the time the letter of instructions was sent as it purports to state that the children were not coping with contact less than 2 weeks after the consent order was made on 8 September 2015.

   ·The facts upon which the opinions are based appear to be solely derived from conversations with the mother and the children, and for reasons already provided, the children’s disclosures are likely to be an exaggerated simply a re-telling of the mother’s version of events.

   ·No access provided or sought to the father’s evidence or version of events, this is not a surprise given she was not an expert appointed by the Court

   ·It follows that vital information was not provided to Ms P before she provided her report. She has had no access to documents provided under subpoena from other sources eg Ms N’s note which clearly demonstrate the practice of the mother to undermine the father to the children and to speak in negative terms of Mr Cunningham and to encourage the child to hold similar views about the father as those held by her.

   ·The report writer has crossed over and is clearly partisan in nature; Ms P has become an advocate for the mother which is contrary to the discussion of expert evidence set out in Brown & Pederson (1989) FLC 92-019

   ·The fact that Ms P is advocating for the mother’s position undermines the veracity of her report and opinions (see W and W 2001 FLC 93-085)

   ·Ms P has not tested the reliability of the disclosures eg by speaking to the father about his version of events or by examining objective material.

   ·She also has a limited understanding of the relevant facts, has not had access to subpoenaed material, failed to consider any other reason why the children might be expressing a negative view of the father eg pressure or influence put on them by the mother. She has made assumptions that have not been tested or which are not available to her on the evidence.

   ·Some facts stated in the report are clearly incorrect eg Mr Cunningham has been in X’s life since she was 4, even the mother says this was from age 2 or 3.

   ·Ms P assumes the children are telling her the truth and not influenced by the mother eg. X says she has “freedom” – I am able to go to neighbours, play Minecraft – but nowhere in the mother’s material or in subpoenaed material is an allegation made that the father restricted X’s social life or had a restrictive attitude towards X visiting or staying at friends’ homes. It is clearly something X has made up, but Ms P reports it as if it were a fact.

   ·She makes broad assumptions without establishing the basis of the assumption eg. pg 4 “it appears that their distress existed prior to separation”.  We are left guessing how she formed that opinion; one possible inference is that this is what the mother reported to the writer, but it does not appear in the report.

   ·It contains no analysis as to why X’s opinion of the father changed between 26/8/15 where she expressed “a mix of fear and hope “about whether Mr Cunningham would turn up at school or hockey, to the day after the orders are made where she says she “does not want to see Mr Cunningham in a million years”. There was no actual contact between X and the father in between those two dates but no hypothesis about why X’s position shifted is advanced.

9. The Court accepts this robust critique.

10. It is no wonder that the Father withdrew his consent to the children’s participation with Ms P.  If he had sought an order formally restraining Ms P’s involvement with the children, it may well have met with the Court’s favour.

11. An issue foreshadowed in one of the dot points at paragraph 48 of the critique above is the evidence by way of the file produced by Ms N.  She was involved with the Mother and the children in a therapeutic context in 2014.  These records raise serious concerns about the Mother’s ability to contain her feelings and attitudes about the Father so as to prevent contamination on the children.  What the Mother was recorded about having said about the Father, in the children’s presence, is deeply disconcerting.  There seems to be an objective basis for the Father’s concern that the Mother is undermining his relationship with the children.  His case that she has created a toxic environment in the children’s home may well prove to have some substance to it.  The records produced by Ms N suggest that, notwithstanding Ms N’s reproof of the Mother’s behaviour, she persisted in her presence.  One can only wonder what is happening in the absence of an independent witness? 

1. There are potentially deeper issues involved.  Is the undermining coming from sources other than just the Mother?  Do any disabilities that the Mother continues to suffer provide an explanation for why she cannot contain her own views about the Father, or is it an issue of lack of insight?  The Father needs to appreciate, of course, that even if he is correct in his assertion that the Mother has created a toxic environment in the children’s home which has the effect of undermining their relationship with him, that may not be the only explanation for the children’s loss of relationship with him.  Again, some of his harsh discipline of the children (a matter he concedes in part) may still have an operative role in the present dilemma.

2. X is not spending time with her father in accordance with the current interim orders.  The extent to which this is attributable to a view that she has independently formed herself, as opposed to a view that has been influenced by the Mother’s household, is unknown.  Ms N’s records suggest that, at one stage, she had a reasonably good relationship with her father.  It is imperative for her to know that on 8 September both her parents agreed that it was important for her to spend time with her father, in accordance with those orders.  If that has not been explained to her, then the Court will request the Independent Children’s Lawyer to do this.  The Mother prefers that these orders be varied and converted into time that is entirely dependent upon her views.  The Court declines to do so. 

3. The Court is satisfied, on the evidence before it, that if it were left entirely to X, she would never express the view that she wants to spend time with her father, in the current environment in which she lives.  That means, potentially, that the Mother may be in contravention of these orders.  It would be unwise for the Father, in these circumstances, to bring a Contravention Application (which, in any event, could not be heard before the final hearing anyway).  It is important, the Court wishes to restate, that X knows that her parents agreed to certain things and the Court now expects compliance with it.  She can be informed that the Court has listened very carefully to her Mother’s concerns, but has nonetheless decided to keep the order as it is.  This will take place, however, within the context of a framework for ongoing therapeutic involvement with the family.

4. The situation in relation to Y is more complex.  His views play a lesser role.  Whatever his mother says his views are is evidence that, in the Court’s view, is plainly unreliable.  Y’s comments to the Family Consultant during the Child Inclusive Conference are concerning.  The same could be said for X’s comments.  It is no wonder that the Family Consultant made the observation that it is “very likely that the Mother’s home environment is one in which there is a high degree of hostility towards Mr Cunningham and that the children are exposed to this.”  The Family Consultant urged the parents to shield the children from their animosity towards each other.  The evidence that the father gives about Y’s time with him is that, once he settles down within a short period of the changeover, they enjoy their time together.  The evidence that her Mother gives in her Affidavit of 3 December 2015 about what she describes as the “increasing signs of distress and anxiety that Y has been exhibiting” is troubling.  The issue does not get the same attention in the Mother’s Affidavit of 13 October 2015, so the inference is that these issues developed later. 

5. Are these disconcerting behaviours of Y attributable to what the Family Consultant describes as the Mother’s hostile environment (and the Father describes as a toxic environment) in her home?  The answer to that is unknown.  Only expert evidence will provide a clearer insight.  In submissions, the solicitor for the Father points out that in the Mother’s second Affidavit she purports to set out behaviours that she observed in Y before the Mother entered into the consent orders.  The solicitor urged the Court to treat those matters with caution.  Indeed, the Court will.  As previously stated, with the benefit of good legal advice, she entered into those consent orders.  Whatever concerns may have existed before then, they were certainly not such as to prevent her from entering into the consent orders. 

6. There is a worrying pattern of the Mother’s escalating concerns, manifested in her Affidavit of 3 December 2015.  The presence of bruising, which she immediately attributes inferentially to something the Father has done, could be explained by reference to any number of matters.  The other concerns that she raises, for example, about nightmares, disturbed sleep, bedwetting, etcetera, may, or may not be, attributable to anything the Father has done.  These matters may, or may not, be attributable to something that the Mother is doing.  The Court is not prepared to accept one hypothesis over another in circumstances where the Family Consultant’s hypothesis of hostility, consistent with that of the Father’s, is corroborated by Ms N’s business records.

Progressing the Matter

1. The Court believes that the appropriate course of action is, in fact, not to make any changes to the orders for the children to spend time with their father.  In other words, to neither increase, nor decrease the time.  What is needed is not more orders, but more non-legal interventions designed to identify, and systematically address, the issues of family dysfunction that plainly manifest in this case.  An expert’s report is also needed.  Both the therapy and the expert report need to be undertaken as soon as possible in order to minimise the pressure on the children.  A further interim hearing may need to take place once that expert report is available.

2. Where further orders are necessary is in relation to attempting to prevent these children from being exposed to the hostile environment that seems to be present in the Mother’s home, and which may well be reflected in the Father’s home.  The Court can certainly make orders, in the usual terms, directed to the parents restraining them from denigrating each other, or discussing these proceedings with or in the presence of the children.  However, as previously observed in these reasons, the case is rapidly descending into tribal warfare and so it becomes equally necessary for the other adults who are involved in the children’s lives to likewise commit to the same orders for the children not to be exposed to discussion about the court case or denigration.  Of course, third parties cannot be bound by orders of this Court.  However, the Court could make an order that the parents use their best endeavours to have named people give undertakings to the court in similar terms, as a precondition to their spending time with the children.  This might contain the risk of contamination to the children coming from persons other than the parents.

3. A detailed set of orders will be made setting a framework for family therapy or family counselling.  The parents will be made accountable for their participation in this process.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 22 January 2016