DACEY & DACEY
[2019] FCCA 1189
•22 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DACEY & DACEY | [2019] FCCA 1189 |
| Catchwords: FAMILY LAW – Parenting – four children –two older children live with father in Darwin – two younger children live with mother in Brisbane – risk concerns in both households – where father will not return to Brisbane – where mother cannot move to Darwin – where parties and siblings not likely to spend time with other siblings whilst children are separated – where father seeking all children live with father in Darwin as mother poses risk to children due to mental health issues – where mother is not seeking for two older children to live with mother but to return to Brisbane to spend time with mother and younger siblings – where mother is seeking coercive order for father to relocate to Brisbane – where ICL seeking order older children be placed in care of State should father not return – Held in children’s best interest for older children to live with father and younger children to live with mother and spend time as agreed with parties to have sole parental responsibility for the children in their care. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 61DA, 65DAA, Pt VII |
| Cases cited: Adamson & Adamson (2014) FLC93-622 |
| Applicant: | MS DACEY |
| Respondent: | MR DACEY |
| File Number: | BRC 9036 of 2015 |
| Judgment of: | Judge L. Turner |
| Hearing dates: | 25 September 2018, 26 September 2018 |
| Date of Last Submission: | 15 January 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 22 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dart |
| Solicitors for the Applicant: | Legal Aid Queensland |
| The Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Mr Baston |
| Solicitors for the Independent Children's Lawyer: | Feeney Family Law |
FINAL PARENTING ORDERS
All previous parenting orders and parenting plans made before 25 September 2018 are hereby discharged.
These orders be read in conjunction with the final parenting orders made by consent on 25 September 2018.
The children [X] born … 2005 and [Y] born … 2005 live with the father.
The father have sole parental responsibility for [X] and [Y].
The mother spend time with [X] and [Y] as agreed upon between the parties.
The children [W] born … 2008 and [Z] born … 2010 live with the mother.
The mother have sole parental responsibility for [W] and [Z].
The father spend time with [W] and [Z] as agreed upon between the parties.
The father shall not physically discipline the children.
The independent children’s lawyer is hereby discharged.
IT IS NOTED that publication of this judgment under the pseudonym Dacey & Dacey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 9036 of 2015
| MS DACEY |
Applicant
And
| MR DACEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves the future parenting arrangements for the parties’ four children, [X] (14), [Y] (13), [W] (11) and [Z] (nearly 9).
A dispute has arisen as to the future parenting arrangements for the children.
Before consideration can be given to the issues, regard must be had to the background of the matter.
Background
By way of brief background:
a)The mother is aged 47 and works as a health care worker in Brisbane.
b)The father is aged 42 and works as a professional in Darwin.
c)In the early 2000’s the parties commenced a relationship.
d)In or around 2003 the parties commenced cohabitation in Brisbane.
e)In 2005 [X] was born.
f)In 2005 [Y] was born.
g)In 2008 [W] was born.
h)In 2008 the parties married.
i)In 2010 [Z] was born.
j)In 2010 the parties separated with the children being primarily cared for by the mother.
k)In 2015 the father retained [Y] for a month without the mother’s consent.
l)In 2015 the parties divorced.
m)In early 2016 the father moved to Darwin, with the children remaining with the mother in Brisbane.
n)In September 2016, without the mother’s permission, the father relocated the four children to Darwin.
o)In October 2016 the mother filed parenting proceedings seeking a recovery order for the children and final orders for the children to live with the mother and spend time with the father on alternate weekends and half school holidays.
p)In the accompanying Notice of Risk the mother raised no concerns as to the father and his capacity to care for the children.
q)At the first return date in November 2016 the mother failed to attend court.
r)In January 2017 the parties attended mediation, which was unsuccessful.
s)In February 2017 it was Court ordered for the children to return to Brisbane to live with the mother.
t)In February 2017 the father filed his response seeking orders that the children remain living with the father in Darwin.
u)In the accompanying Notice of Risk the father raised concerns as to the impact of the mother’s mental health on her parenting of the children.
v)In April 2017 the parties agreed to interim orders for:-
i)The children to live with the mother.
ii)The parties to have equal shared parental responsibility for children.
iii)The children to spend holiday time with the father.
w)In June/July 2017 school holidays the children spent time with the father in Darwin.
x)In September 2017 the first family report (2017 family report) was released which recommended the children live with the mother in Brisbane and spend time with the father during school holidays in Darwin and as agreed when the father is in Brisbane.
y)In September 2017 school holidays the children spent time with the father in Darwin.
z)In February 2018 the father returned to Brisbane.
aa)In February/March 2018 the father, with the mother’s permission, became the temporary primary carer for [Y].
bb)In April 2018 the father filed an application for the four children to live with the father.
cc)In May 2018 the parties were ordered to attend for a psychiatric assessment. Only the father attended the appointments.
dd)In May 2018 the father moved to Darwin returning [Y] to live with the mother.
ee)In June 2018 the father’s application for a change of residence for the four children was dismissed.
ff)In August 2018, after the mother’s admission to hospital for mental health issues, interim orders were made for the children to live with the father and for the father to have sole parental responsibility for the children.
gg)In August 2018 the father unilaterally moved the four children to Darwin.
hh)In September 2018 the second family report (2018 family report) recommended the court “make a judgment on the parenting arrangements for the children” ([121] 2018 family report).
ii)In September 2018 the psychiatric report of the father was released which recorded the father’s “mood was normal and not anxious and not depressed… he was not psychotic in that he was out of touch with reality. The form, possession and stream of his thoughts were normal. There was no evidence of perceptual abnormalities… his intelligence was in the average range as assessed clinically”.
jj)After the final hearing in September 2018, the parties entered into interim consent orders whereby all four children return to Brisbane to live with the mother as it was the father’s intention to return to live in Queensland by Christmas 2018, after which time the father would spend time with the children.
kk)After the final hearing the parties did not comply with the interim order and privately agreed on an interim basis that [W] and [Z] return to live with the mother in Brisbane and [X] and [Y] remain living with the father in Darwin as the father was no longer prepared to return to Queensland.
As at the date of preparing this judgment:
a)The mother is living with [W] and [Z] in Brisbane with no physical time occurring with the father or the other siblings.
b)The father is living with [X] and [Y] in Darwin with no physical time occurring with the mother or the other siblings.
Agreed final orders
The parties on the first day of the final hearing agreed to the following parenting orders on a final basis:-
a)Orders for communication between the children and each parent.
b)The parties not to discuss the proceedings with the children.
c)The parties not to consume alcohol to excess or illegal substances within 24 hours of being in the presence of the children and shall not consume alcohol to excess of the legal limit when the children are in their care.
d)Orders as to respecting privacy, speaking respectfully of each other and non-denigration.
e)Any weapons be stored properly and legally.
f)The parties to keep each other informed as to medical practitioners, medical emergencies and educational facilities for the children with the orders to act as an authority for parties to obtain at their expense educational and medical information.
g)The parties keep each other informed as to residential address and telephone numbers.
h)Parties be able to attend school functions.
i)Alternate dispute resolution.
Evidence
In considering the outstanding issues regard has been had to:-
a)The material as marked on the court file.
b)The Notices of Risk.
c)The 2017 family report released by Ms A.
d)The 2018 family report released by Dr B.
e)The psychiatric report of the father by Dr C.
f)The oral evidence of the parties and the witnesses.
g)The written submissions.
h)Part VII Family Law Act 1975.
i)Relevant authorities.
The mother is legally represented.
The father is self represented.
In accordance with Johnson & Johnson (2000) 201 CLR Re F Litigants In Person Guidelines [2001] FamCA 348, the court process was thoroughly explained to the father and every attempt was made to ensure that there was fair process to the father during the course of the final hearing.
The court has the benefit of an independent children’s lawyer (ICL).
For the mother the following witnesses were called and cross-examined:
a)The mother.
b)Mr D (the maternal uncle) (Mr D).
I find the mother and Mr D to be credible witnesses.
For the father the following witnesses were called and cross-examined:
a)The father.
I find the father to be a credible witness.
In addition to the witnesses, the second family report writer Dr B was cross-examined.
I give weight to the 2017 and 2018 family reports and to the oral evidence of Dr B.
At the conclusion of the final hearing directions were made for written submissions.
The father’s submissions were provided in the form of an affidavit, which attached statutory declarations from paternal family members. Regard has not been had to the statutory declarations and these documents have not been read.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
The law
I now turn to the law.
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence, when making a parenting order the court must consider what is in the best interests of the child pursuant to section 60CA.
But, as succinctly put by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48] “‘best interests’ is not the application of a theoretical construct but rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child… of this parenting relationship.”
As discussed by the Full Court in Moose & Moose [2008] FamCAFC 108 at [66] the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interests having regard to “the matters set out in section 60CC(2) and (3), guided in …consideration of the provisions by the objects set out in section 60B(1) and the principles underpinning it contained in section 60B(2).”
As to the primary considerations and the leading authority of Mazorski v Albright (2007) 37 Fam LR, Brown J refers to such considerations as “the twin pillars”:-
a)Where the first pillar is the importance of a child to have a meaningful relationship with both parents; and
b)The second pillar is the need to protect children from physical and emotional harm.
In deciding what is in the best interests of the individual child, sections 61DA and 65DAA come into play, because if the child is subject to an equal shared parental responsibility order, then equal or substantial and significant amount of time to be spent by the non-resident parent, if reasonably practical, must also be considered.
This distinct pathway, which applies to parenting matters when an equal shared parental responsibility order has been made, is the subject of much discussion by the High Court in MRR v GR (2010) 263 ALR at [368] and this pathway applies also to relocation cases.
Before considering the issues and applying to the law, it is necessary to consider the proposals.
Proposals
When determining parenting orders the court “must regard the best interests of the child as the paramount consideration” (section 60CA Family Law Act 1975).
In the majority of matters, whilst the process of determining what arrangements best serve the interests of the child can be a long and arduous journey, the outcome is clear, resulting in the continued involvement of the parties in the children’s lives and the children in their sibling’s lives.
However, this is one of those matters, which unfortunately falls within the minority of matters, where the outcome may result in a loss for the children of their relationship with a parent, with their siblings or with both.
Currently the two older children [X] and [Y] (the older children) live with the father in Darwin and the two younger children [W] and [Z] (the younger children) live with the mother in Brisbane.
The older children do not spend time with the mother or the younger children, and the younger children do not spend time with the father or the older children as neither party can afford the travel.
The mother is seeking for the older children to return to live in Brisbane with the father in order for the older children to spend time with the mother and the younger children and for the younger children to spend time with the father and the older children.
Mother’s proposal
The reality however is that the father (despite earlier indications that he would be returning to live in Queensland) will not return to Brisbane to live with the older children if the court orders for the relocation of [X] and [Y] back to Brisbane.
In the event that the father does not return to live in Brisbane, the mother is not seeking an order for the older children to live with her, as the mother acknowledges limitations in her ability to primarily care for the older children.
The mother however is seeking a coercive order forcing the father to return to Brisbane to live with the older children.
Father’s proposal
The father is seeking for all four children to live with the father in Darwin as the father does not want the children to be separated and the father has concerns as to the ability of the mother to care for the children due to her mental health.
The mother is unable to live in Darwin as “all her family, social supports, medical and health team are located in Brisbane… if she relocated to Darwin she would be isolated and believed there would be a negative impact on her mental health which in turn would impact on her ability to be a happy and healthy parent… she described she would have difficulty living near the father because of what he has done to her in the past” ([67] and [68] 2017 family report).
Such an arrangement would result in the children being together but never spending time with the mother.
ICL’s proposal
The independent children’s lawyer (ICL) has concerns about the father’s ability to care for any of the children and seeks orders whereby the older children return to Brisbane to live with the father and spend time with the mother.
However, if the father fails to return to Brisbane to live with the older children then the ICL proposed that the older children be placed in the care of the State and the father spend time with the younger children during school holidays.
The difficulty with that proposal is that the siblings will be split, the older children if placed into care may not see either parent or the younger children and the younger children due to financial constraints will not spend time with the father.
Before determining what orders best represent the best interests of the children, findings must be made as to some of the proposals being sought.
Coercive orders
A coercive order is an order where the court requires the parent to relocate with the children.
The mother is seeking that the court consider the making of a coercive order requiring the father to return with the older children to Brisbane.
This position has not been adopted by the ICL.
The power of the court to make a coercive order is addressed by the Full Court in Sampson & Hartnett(No.10) [2007] FamCA 1365 where, after careful consideration of the relevant authorities, the following comments were made:-
a)“In our view, there is nothing in the authorities that establishes that there is no power within the Family Law Act to directly restrain a parent from relocation or to directly require relocation. To the contrary, while there has been no decision expressly on point, there are some statements that support the existence of such a power” ([33]).
b)“As to the court’s power to make coercive orders and the propriety of making such orders, section 65D provides (1) in proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and section 65DAB (parenting plans) and this division, make such parenting orders as it thinks proper (emphasis added)” ([45]).
c)“The sections are replete with references to parental obligations and duties… These and other provisions support the notion that, the parties having surrendered the resolution of dispute about parental arrangements to the court, the court has the function of crafting orders that ensure the best parenting arrangement is put in place and that parents ‘fulfil their duties, and meet their responsibilities…’. It is entirely consistent with that function that parenting orders, and orders that support those orders, such as injunctions, be directed to the parents and place obligations upon them” ([45] and [46]).
d)“As indicated earlier, the purpose of a ‘coercive’ order is more to create a situation, rather than choose between situations that already exist. This distinction raises the basic question of the extent to which orders need to be connected to the evidence in a case” ([47]).
e)“If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at least once existed. This contrasts with a person who may not wish to go somewhere and therefore the order is much more of an imposition on that person’s freedom” ([57]).
f)“However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
ii)in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing” ([58)]
g)“The prospect of ordering a parent to relocate and in effect ‘parent’ in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times” ([59]).
The ability of the court to make a coercive order was reaffirmed by the Full Court in Oswald & Karrington [2016] Fam CAFC 132 at [16] but in considering of the making of a coercive order the Full Court (referring to Adamson & Adamson (2014) FLC93-622) warns it “is well established that the proper exercise of that power is ‘at the extreme end of the discretionary range’ and there should exist ‘rare’ or ‘extreme’ factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue to perform the role of primary caregiver of children… there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing” ([16] and [17]).
The mother submits that a coercive order is the only order the court can consider in this matter as there is a lack of available alternatives as:
a)The parties do not have the financial means to support travel for the children to see either parent due to the distance and costs involved in travel between Brisbane and Darwin.
b)The children need the parties to live in close proximity to each other so that the father can support the mother when the mother has mental health issues.
c)There are benefits for the children living close together.
d)The children should not be separated.
e)The father has the ability to obtain employment in Brisbane.
Conclusion as to a coercive order
Having given careful regard to the history of this matter and to the evidence, I find that this is not a matter where the making of a coercive order is suitable.
I make this finding based on the following:-
a)The parties after the final hearing had agreed on an interim basis for all children to be returned to Brisbane to live with the mother.
b)Shortly afterwards the parties each reneged on this interim order with the parties privately agreeing for the younger children to return to Brisbane to live with the mother and for the older children to remain in Darwin to live with the father.
c)The older children have been in Darwin since August 2018 and are settled in school.
d)The mother accepts and acknowledges that the older children are to remain in the primary care of the father.
e)The mother now argues that this was agreed to on the basis that she would spend school holiday time with the older children (which has not happened). This submission however is flawed and cannot be given weight as the parties were both well aware (as evidenced during the final hearing) that travel costs were prohibitive for each party.
f)Even if a coercive order was made:-
i)The father will not return to Brisbane.
ii)The mother is likely to renege and allow the older children to remain in Darwin with the father, as the mother is unable to care for the older children.
I therefore find that a coercive order cannot be made in this matter.
Referral to State for the older children to be placed into care
The ICL is so convinced as to the father’s position of not returning to Brisbane that the ICL seeks an order that if the older children are not accompanied by the father back to Brisbane then the children are to be placed into care.
The ICL submits, “this is suggested as an extreme alternative…the premise for such a suggestion is that the mother has questionable capacity to care for all four children concurrently particularly due to [Y] and [X]’s behavioural issues”.
But can the court make an order in this matter for the older children to be referred for care to the State?
Conclusion as to referral
As to the ICL’s suggestion of a possible referral of the placement of the older children into the care of the State should the father remain in Darwin I find that this proposal cannot be considered by the court given:-
a)This was not a proposal put to the parties prior to the commencement of the final hearing.
b)This was not a proposal put to the parties by the ICL during cross-examination.
c)This was not a proposal put to the family report writer by the ICL for comment.
d)This was not a proposal discussed at the conclusion of the final hearing.
e)This proposal only emerged in the ICL’s written submissions.
f)It is not procedurally fair (as discussed by the Full Court in Farmer & Rogers [2010] FamCAFC 253) for the court to consider a proposal that was not raised at the final hearing, especially where the father is self represented.
g)There is no evidence before the court as to whether such an order is in the best interests of the children.
What are the available options?
Because a coercive order or a referral order cannot be made the court has but two alternate positions to consider:-
a)The current situation continuing where the older children remain living with the father in Darwin and the younger children remain living in Brisbane with time to occur for the children with each other and the other parent as can be agreed upon between the parties.
b)All four children live with the father in Darwin, with the likelihood that the children will not spend time with the mother.
In order to determine which alternative is in the children’s best interest consideration must now be given as to the risks each party may pose to the children and issues within the household.
Risk and issues for children with mother
Mental health
The mother was diagnosed in 1994 with Bipolar Affective Disorder (BPAD) and since 2004 has been medicated and under the ongoing care of the Hospital and treating psychiatrists.
The hospital records indicate that historically he mother has self-presented for treatment and been from time to time hospitalised both voluntarily and involuntarily.
In 1999 the mother was hospitalised to regulate her medication.
The father knew about the mother’s condition when they met in 2000.
Between 2000 and 2015 the mother did not require hospitalisation
In 2015 and 2016, the mother was hospitalised.
In the 2016 incident the children were left home alone when the mother was admitted to hospital but subsequently cared for by family members.
As to the 2016 episode, the mother informed the first family report writer:
a)As to the “‘mental breakdown’ last year… ‘I was on employment for one month and the father was supposed to have the children on weekends but he had a new girlfriend and was not having the children. I separated with a new boyfriend who did not like [Y]. He yelled at [Y] so I broke up with him. The father does things like not take the children deliberately when I have a lot on my plate, he does not help us. I became depressed and admitted myself to hospital. It was for a few days and they found my medication was too strong which impacted on my mental health’” ([32] 2017 family report).
b)“She described an acute manic phase last year where she was experiencing some delusional thoughts and self-admitted to the Hospital for treatment ‘for approximately two or three days.’ She explained this episode was caused by high levels of stress caused by the situation with the father, other complex issues she was experiencing in her personal life at the time and her medication dosage was not correct. She reported she has dealt with her personal issues and sought support to manage her stress, that this was the last time she was in hospital for her mental health” ([46] 2017 family report).
Overall as to her mental health in 2017 the mother stated:
a)“She has a mental health disorder though described herself as ‘high functioning’” ([45] 2017 family report)
b)“She sees her psychiatrist bi-annually and has regular contact with her general practitioner as required” ([45] 2017 family report).
c)The mother “has a mental health safety plan in place that was developed with the hospital social worker. This plan includes; care of the children, who to contact to make arrangements for the children and family support services to engage of discharge. This plan is recorded in her hospital medical chart” ([47] 2017 family report).
d)The mother “described good family support from her sister, brother and cousin who will care for the children if she has another episode in the future which she reports is unlikely as she is managing her stress levels and has her medication reviewed regularly” ([47] 2017 family report).
e)The mother “refutes the father’s allegations her mental health impedes her parenting capacity and the only time she required support was when she was hospitalised” ([48] 2017 family report).
The first family report writer noted that the mother’s treating psychiatrist at the time (Dr E) wrote in a letter dated 10 February 2017 “to date the mother’s bipolar disorder has not compromised her abilities to perform her parental duties and has not placed her children at significant risk” ([129] 2017 family report).
The first family report writer concluded
a)“There appears to be no indications the mother’s mental health impacts upon her other life skills. She is able to hold down a job in her occupation and continue with tertiary studies” ([48] 2017 family report).
b)“The children did not disclose any significant concerns in relation to their mother except for her propensity to yell when she cannot manage their behaviours” ([144] 2017 family report).
c)“I am of the opinion that the mother’s mental health when she is well and managing does not impact her ability to parent the children nor place the children at significant risk” ([146] 2017 family report).
d)“I agree when the mother becomes unwell there would be some risk to the children however this risk has been somewhat mitigated by the mother ensuring a mental health safety plan is in place” ([146] 2017 family report).
In October 2017, the mother was further hospitalised for 11 days when the children were cared for by Mr D.
In the second family report it was noted in respect to the 2017 hospitalisation:-
a)“Collateral information from hospital records report that the (mother) presented with poor insight, noncompliance with medication, self- medicating inappropriately, uncooperative, reduced sleep and disorganised thinking” ([8] 2018 family report).
b)“Upon arrival the mother refused voluntary admission and was therefore involuntarily admitted, the mother was reported to have kept the four children from going to school and brought the two youngest children with her to the hospital (the eldest two stayed at home alone)” ([8] 2018 family report).
c)“The mother was admitted for 12 days before being released” ([8] 2018 family report).
In a letter dated 20 October 2017 Dr F (the mother’s treating psychiatrist since 2014) notes the mother “has insight into her current condition in relation to assistance required for her to maintain her wellness in her mental health and to provide for her children” and “was in regular contact with her children via telephone and also whilst she was granted leave off the ward. Child safety reports were undertaken by Mental Health Clinicians whilst” the mother “was an inpatient and will continue throughout her care with Suburb G Community Mental Health”.
The last family report interviews occurred prior to the mother’s latest period of hospitalisation for BPAD with the mother reporting:
a)“The mother was of the view that her mental health was stable saying, ‘it’s taken me a long time but got it right’” ([39] 2018 family report).
b)“The mother openly acknowledged her mental health issues saying, ‘I know my mental illness is serious’, and became teary before saying, ‘I kept alive coz of my children…I’ve stayed strong’” ([39] 2018 family report).
c)“The mother spoke of being able to self-medicate when required saying, ‘I know how to self-medicate…with my own (prescription) drugs’. The mother added that she does this with guidance from her General Practitioner” ([40] 2018 family report).
d)“The mother reported that she can usually recognise when her mental health has declined to a point that she requires assistance and has a safety plan (formulated during a past hospitalisation) that she follows which includes, calling her brother or sister, if they're not available has ‘lots of friends’ or professional crisis support services such as Beyond Blue or Parentline. The mother said that ‘if I don't know or pick it up (being unwell) my brother will’” ([43] 2018 family report).
e)“The mother was of the view that her brother will admit her to the hospital if he feels it is necessary and has done so in the past on more than one occasion. The mother described ambivalent feelings about seeking emergency treatment saying, ‘Hospital is hell on Earth….don’t want to go back to hell….but I have to because of my kids’” ([43] 2018 family report).
f)“The mother described the intervention she receives from her psychiatrist as supportive and this is how the psychiatrist also describes it in collateral information reported, along with of course monitoring of medication” ([44] 2018family report).
The father is concerned as to the mother’s mental health impacting her ability to care for the children, informing the second family report writer:
a)“The mother will yell at the children, become verbally aggressive, become disorganised, get stressed easily, lies and exaggerates, and becomes narrow-minded when she is unwell” ([45] 2018 family report).
b)“The mother holds relentless delusional beliefs at times when unwell, for instance that others are out to get her or have ‘screwed her over in some way’” ([45] 2018 family report).
c)“The mother would be unwell for several weeks prior to seeking hospitalisation and that the mother had failed to comply with recommended treatments and supports multiple times following discharge from hospital” ([45] 2018 family report).
d)“The father was of the view that the mother ‘needs to accept help’ to improve her mental health” ([45] 2018 family report).
During the 2018 family report interviews, the mother “was of the belief that her mental health issues did not impact on her parenting or the children, saying, ‘I still do what I need to door children daily’. However, the mother stated that she is ‘always hypomanic’ and that this meant she did ‘things quickly’ and therefore ‘forgetting little things like making lunches’ is the only impact her mental health has (on her parenting) ([41] 2018 family report).
The second family report writer concluded:
a)“At present, the mother’s emotional regulation skills are clearly impaired which directly affect her ability to parent effectively” ([104] 2018 family report).
b)“The mother’s ability to regulate her emotions is a central issue in this matter as this directly affects her capacity to function optimally as a parent and as a person” ([104] 2018 family report).
c)“I believe that the mother has genuine care and regard for the children” ([105] 2018 family report).
d)“The mother demonstrates some impaired parenting skills which exacerbate the stress and distress experienced by the mother, which in turn reduces her capacity to meet the needs of the children e.g. lack of attunement, effective discipline, boundary and limit setting, ability to deescalate behaviours” (105] 2018 family report).
e)“The mother has been the children’s primary carer however her relationship with at least one of the children, [Y], is fractured and it can be argued that the mother’s parenting style and mental health issues have contributed directly to the decline in this relationship” ([106] 2018 family report).
f)“The mother’s capacity to prioritise the children’s feelings and needs above her own, when stressed or upset herself, appears to be poor. The mother’s presentation during observations and interview, albeit under stress, was concerning, particularly given the mother reported she felt that she was currently well. The mother’s capacity to listen and take other’s viewpoints was poor, arguing with the children and invalidating their feelings was evident, leaving them alone unsupervised and neglecting to address their distress about this, aggression at dissatisfaction with process and verbalising this in front of the children shows a lack of parental insight or regard for the behaviour she is role-modelling to the children” ([108] 2018 family report).
g)“The mother’s mental health issues are likely a precipitating factor in terms of the mother’s difficulty in regulating her emotions, but also clearly affects her decision making and functioning at times” ([110] 2018 family report).
h)“What is most concerning is the mother’s apparent lack of insight into the impact of her mental health on the children; lack of insight about needing to seek intervention earlier when her mental health declining; lack of insight into the need to take advice and recommendations from professionals. I find it concerning that the mother’s lack of insight into how therapy may help or at least the fact that she needs to develop her mental health skills” ([110] 2018 family report).
Just after the family report interviews in August 2018, the mother was hospitalised for several weeks due to mental health issues.
During that time the father, without the mother’s knowledge, came to Brisbane to look after the children and took the opportunity to relocate the children to Darwin without the mother’s consent.
The letter from Dr F dated 9 September 2018 says, “when stable” the mother “exhibits adequate parenting capacity as an adult. However when her condition declines, her parenting capacity gets affected, especially when she requires admission to hospital. However, during these times she has good family support from her brother and his partner to provide support for her children. She has never exhibited any risk behaviours towards the children” (Exhibit A).
The ICL submits “the mother has capacity to care for the children for a period of time, however during times of great strain the children are at risk” and ‘the mother’s mental health has significant negative impacts on her capacity at times of great stress” but that the mother has family support if needed.
The mother has not been hospitalised for mental health issues since August 2018.
Conclusion as to mother’s mental health
I find that when the mothers’ mental health does not pose a risk to the children and in particular the younger children who are in the mother’s primary care.
I base this finding on the following:-
a)The mother has had mental health issues for many years, during which time there have been long periods without incident of mental illness.
b)The father was aware of the mother’s mental health issues when the parties first met.
c)The mother’s mental health did not deter the parties from starting a family and having four children.
d)The father after separating in 2010 left the children in the primary care of the mother and continued to do for several years with little assistance from the father.
e)The mother’s deterioration in mental health appears to have heightened around the deterioration of her relationship with [Y] and the father’s interruption in the children’s living arrangements by retaining the children in his care.
f)The friction between the mother and [Y] and to a lesser extent with [X] no longer exists due to the older children living with the father.
g)The mother has sought help when her mental health has deteriorated and has the support of family during periods of hospitalisation.
h)The mother’s mental health issues were not significant enough an issue for the father when the decision was made for the younger children to return to live with the mother in Brisbane after August 2018.
i)Since the younger children have been in the mother’s care and the older children have remained in the father’s care, there have been no mental illness incidents requiring the mother to be hospitalised.
j)I give weight to the opinions of the mother’s treating psychiatrist that the mother does not pose a risk to the children due to her BPAD.
As risk has not been identified then the mental health of the mother is not a factor that need be taken into account when determining the future parenting arrangements for the children, nor does it support a change of residence for the younger children from the mother to the father.
Abuse of children
During the first family report interviews the father did not raise any issues as to child abuse by the mother ([22] 2017 family report).
However in the second family report interviews the father reported:-
a)“The mother engages in ‘unsafe driving (speeding, erratic) when upset’ with the children in the car” ([30] 2018 family report).
b)“The father alleged that on one occasion the mother verbally abused [W] at a shopping centre and told him to stay outside in the car park causing [W] to become very sunburnt” ([30] 2018 family report)
c)In 2017 “on another occasion when [W] was being difficult with the mother that he was physically harmed which caused bruising to his arm” ([30] 2018 family report).
The mother “denied all these allegations calling this ‘bullshit’” ([30] 2018 family report) and as to the bruising incident involving [W]:
a)“The mother reported that ‘I was depressed (at the time)….not in the right frame of mind’, as this incident shortly followed her discharge from hospital in October 2017” ([31] 2018 family report).
b)“The mother also said that [W] was wanting to live with his father (and therefore upset) and that [W] was ‘always looking for more attention’, so ‘during the car ride (to the shopping centre) [W] was saying to me you need to go back to the hospital you've got Bi-Polar’, than (at the shopping centre) [W] ‘was hitting me … pushed me over’” ([31] 2018 family report).
c)“Asked how the mother responded to [W]’s behaviour, the mother said, ‘I was humiliated (being pushed over in public)…..What do you do? I started pushing him away …told him to shut up’. The mother said that [W]’s behaviour continued so she walked away (from [W]). The mother than says ‘[W] took off….finally found him at a bus stop’” ([31] 2018 family report).
The bruising incident was investigated by the police but not pursued.
The father in cross-examination struggled to accept that the mother had not abused [W].
Conclusion as to abuse
I find that there is insufficient evidence to support an allegation of abuse of the children by the mother.
Therefore, this is not a factor that need be taken into account when determining the future parenting arrangements for the children, nor does it support a change of residence for the younger children from the father to the mother.
Neglect
During the second family report interviews the father reported:
a)“The children are reluctant to eat food from the mother’s fridge due to having experiences where the food was off” ([30] 2018 family report).
b)The children are “going to school inappropriately dressed during winter” ([30] 2018 family report).
c)“The children seem to have a lack of routine and organization in their environment when living with the mother” ([33] 2018 family report).
The father in cross-examination said that the mother is a “bad mother” and has told the children that she is untidy, dirty and lazy.
The father submits that the mother “provides no stability or routine at home. There are no boundaries on behaviour. No supervision or control of electronic devices. No school routine. They live in dirty and unhygienic conditions affecting their health” ([17] father’s November 2018 affidavit).
The mother admits in cross-examination that at times she has struggled with housework but that she keeps a clean and tidy household and the children always have clean clothes for school.
Conclusion as to neglect
I find that there is insufficient evidence to support an allegation of neglect of the children by the mother.
Therefore, this is not a factor that need be taken into account when determining the future parenting arrangements for the children, nor does it support a change of residence for the younger children from the father to the mother.
Relationship with [X]
During the first family report interviews [X] (then aged 12) told the family report writer:
a)“He described loving everything about his mother, that there was nothing he did not like about her and he is worried about what will happen to her given the current situation with his father” ([87] 2017 family report).
b)“He described both his parents yelling when they are tired and angry. He stated the yelling was not a major deal to him and he wasn’t concerned about it. He reports he doesn’t get in trouble from his parents as he doesn’t do much wrong” ([89] 2017 family report).
c)“His wish is to live with his mother and spend time with his father every week of the school holidays” ([91] 2017 family report).
The mother said:
a)[X] is “well behaved, close to me, a darling, responsible, good kid that’s easy to manage. He is very good at art” ([116] 2017 family report).
b)“She reported they have a good relationship and [X] was a ‘mummy’s boy’” ([116] 2017 family report).
During the second family report interviews [X] (then aged 13) told the family report writer:
a)“The mother would become ‘stressed out when there’s fighting going on (between siblings)’ and that ‘things are a bit hectic at home’” ([86] 2018 family report).
b)“Mum spoils us more (than Dad)” ([87] 2018 family report).
c)“[X] thought that the mother was ‘soft’ on her discipline towards the children and was of the view that the mother had been trying lately to implement more discipline ‘trying to be tougher on us’” (2018 family report).
d)“However [X] was of the view that the mother’s efforts to change her approach was ‘too late…were used to letting it flow and so it (mum’s recent efforts) doesn't work with us now’” ([87] 2018 family report).
e)He “wouldn’t miss mum too much because we’d see her on the holidays… Mum seemed ok and less stressed without us when we were living with Dad before saying that they used to call the mother every day” ([89] 2018 family report).
Conclusion as to relationship with [X]
[X] is now aged 14 and as noted by the first family report writer “[X] is on the verge of transitioning to adolescents and this is a crucial developmental stage for him as he is developing greater independence and autonomy from his family” ([151] 2017 family report).
The evidence supports that the mother and [X] have a meaningful relationship but in recent times, the relationship between the mother and [X] has become fractured.
[X] also has difficulties in his relationships with his siblings with it being noted in the first family report:
a)[X] “did not name his siblings as part of his family group” ([86] 2017 family report).
b)[X] said, “I don’t get along with [Y] and I don’t like him, I’m not close to [W] and I find him boring and [Z] is also boring” ([120] 2017 family report).
c)[W] said, “[X] is always silly and we never spend time together and [X] likes being in his room all the time” ([122] 2017 family report).
In the second family report it is noted “the older brothers, and [W] are all described to be in conflict with one another at various times” ([92] 2018 family report)
[X] (now aged 14) wants to live with the father informing the second family report writer “I’d probably choose Dad” adding, “I agree with Dad that is no 50/50 because better to have one home rather than two homes with different rules” ([88] 2018 family report).
The mother acknowledges in her proposed orders that [X] should remain living with the father.
The evidence supports that [X] not being in the mother’s primary care reduces the conflict [X] previously had with the younger children and [X] had with the mother, which negatively affected the younger children.
I find that this factor supports the ongoing arrangements whereby [X] continue to live with the father in Darwin.
I further find that as the meaningful relationship between the mother and [X] is established, that whilst [X] may not physically spend time with the mother that their relationship can be nurtured through telephone calls.
Relationship with [Y]
In 2014 [Y] was diagnosed with Attention Deficit Hyperactive Disorder (ADHD) and has been medicated ever since.
[Y]’s condition has resulted in behavioural issues as noted in the second family report:-
a)“Both parents reported concerns for [Y]’s behaviour describing [Y]’s defiant and aggressive behaviours” ([78] 2018 family report).
b)“[Y] has been suspended multiple times at school for aggressive and inappropriate behaviours” ([78] 2018 family report).
During the first family report interviews [Y] (then aged 11) told the family report writer:
a)“He likes that his mother lets them have ‘take away’ on Wednesday’s and Fridays and he loves that his mother hugs him a lot. He doesn’t like that she spends all her money quickly then he and his siblings don’t have money to do anything” ([95] 2017 family report).
b)“[Y] presented as concerned about what was going to happen after the court case and the possibility he would have to move away from either of his parents stating ‘this decision is really hard for me’” ([97] 2017 family report).
c)“[Y]’s stated he wishes to live with his mother and wants his father to move back to Brisbane and then he could live one week with mum and one week with dad” ([100] 2017 family report).
The mother said:
a)She is “struggling with [Y]’s behaviour at times but this is due to his Attention Deficit Hyperactivity Disorder not her mental health” ([48] 2017 family report).
b)[Y] is “very clever, really hyperactive, he is performing well at school, he can be hard to parent sometimes due to his behaviour” ([117] family report).
c)“She has a good connection with [Y], though at times they have conflict as he ‘challenges’ her” ([117] family report).
The first family report writer noted “the mother did struggle managing [Y]’s behaviour at times. She would tell him not do something, he would say no and walk off and continue doing the behaviour. I observed [X] go to [Y] and whisper in his ear to behave” ([125] 2017 family report).
In the second family report interviews the father:-
a)“Attributes [Y]’s behaviours to at least partly to aspects of the mother’s parenting” ([78] 2018 family report).
b)“Was of the view that [Y] defies the mother’s requests, for example going to bed and that there are no consequences for this” ([78] 2018 family report).
c)“Believes that due to the mother failing to provide a routine and organisation in the environment, this contributes to [Y]’s presentation and behaviour” (([78] 2018 family report).
In February 2018 the father had temporary primary care for [Y] explaining in the second family report interviews “this was a ‘trial’ due to [Y]’s problematic behaviours at school and at home with the mother. The mother agreed this was arranged to ‘see if the father could help him ([Y])’” ([11] 2018 family report).
This continued for approximately three months when “two days following court on 1 May 2018, the father returned [Y] to the mothers care and returned suddenly to resume living and working in Darwin” ([12] 2018 family report).
At the second family report interviews it was noted “[Y] was very emotive in expressing his views and in general appeared very frustrated and discontented with the mother, their relationship and his situation overall” ([77] 2018 family report).
During the second family report interviews [Y] (then aged 12) told the family report writer:
a)“The mother was exploiting him to obtain financial and supportive assistance. [Y] reported, ‘Mum makes up a lot of stuff…she says a lot of things about me to get help and money’” ([80] 2018 family report).
b)“[Y] went on to speak quite despairingly of the mother saying, ‘She shouldn't be parenting us if she thinks she can’t’. Asked to explain this further, [Y] said that his mother ‘complains a lot about not being able to do this (parent us)’” ([80] 2018 family report).
c)“Asked about how he feels about his mother and their relationship, [Y] reported, ‘she just doesn't get us…well I can only speak for myself’ adding, ‘she says a lot of things she’ll but doesn't actually do’ extracting this to, ‘she doesn't try to take care of us as much as Dad does’” ([80] 2018 family report).
d)“[Y] was of the view that at times he felt the need to fulfil a parental role for the younger siblings, saying, ‘sometimes I act like a parent coz Mum doesn't act like one…(for example) pulling up the siblings when they're out of hand’” ([80] 2018 family report).
e)“[Y] described the general household at the mothers as ‘not how it should be…it’s untidy, dirty often…it all comes down to Mum being lazy’” ([81] 2018 family report).
f)“That if [Y] lived with the father he was not sure but ‘we’d probably miss her’” ([83] 2018 family report).
The mother informed the second family report writer that [Y] was “angry” with her ([90] 2018 family report) with the second family report writer noting:
a)“[Y]’s relationship with the mother appears very strained as reported by the mother and father” ([93] 2018 family report).
b)“All the children described a conflictual relationship exists between the mother and [Y]” ([103] 2018 family report).
Conclusion as to relationship with [Y]
I find the evidence supports that [Y] has a meaningful relationship with the mother, but that the mother and [Y] clash as the mother struggles to manage [Y]’s behaviour.
[Y] also has conflictual relationships with some of his siblings:
a)[Y] informed the first family report writer “[Z] can be a hassle but I get along well with her and we do activities together, I don’t get on that well with [W], he is a sort of in the middle type bro. I get along with [X] really well” ([121] 2017 family report).
b)[W] informed the first family report writer “[Y] always fights with me and we don’t get along at all” ([122] 2017 family report).
c)[Z] informed the first family report writer “I fight with [Y]” ([123] 2017 family report).
During the second family report interviews it was noted, “the older brothers, and [W] are all described to be in conflict with one another at various times, particularly [W] and [Y]” ([92] 2018 family report).
[Y] told the second family report writer “50/50 probably could work…I don't know” ([83] 2018 family report).
The mother acknowledges in her proposed orders that [Y] should remain living with the father.
The evidence supports that [Y] not being in the mother’s primary care reduces the conflict [Y] previously had with the younger children and [Y] had with the mother, which negatively affected the younger children.
I find that this factor supports the ongoing arrangements whereby [Y] continue to live with the father in Darwin.
I further find that as the meaningful relationship between the mother and [Y] is already established, that whilst [Y] may not physically spend time with the mother that their relationship can be nurtured through telephone calls.
Relationship with [W]
During the first family report interviews [W] (then aged 9) told the family report writer:
a)“He likes that his mother always takes them places on the weekend and his mother ‘always does a lot for me’” ([104] 2017 family report).
b)“He didn’t like his mother ‘yelling all the time’” ([104] 2017 family report).
c)“He is concerned that he doesn’t know who he wants to live with” ([104] 2017 family report).
The mother said [W] is “a good boy who is influenced a lot by [Y] but not as hard to parent, [W] is closer to his father, he is a sporty kid who loves sports” ([118] 2017 family report).
During the second family report interviews [W] (then aged 10) told the family report writer:
a)“In terms of living with the mother, [W]’s view was, ‘feel like not getting enough care’” ([72] 2018 family report).
b)“[W] relayed some concerns about the mother’s mood, behaviour and the living environment to explain what he meant by this. [W] reported, ‘There was some food in the cupboard with maggots in it….now I try not to eat as much’” ([72] 2018 family report).
c)“‘Mum’s just angry all the time….I wish she wouldn't yell as much…especially me and [Y]’. [W] reported that there was a bedtime set by the mother but also described the mother ‘always yelling at [X] and [Y] to go to bed, but they don't listen’. [W] described that ‘Mum sort of just lets them get away with things’” ([72] 2018 family report).
The mother informed the second family report writer that her relationship with [W] is “okay” ([90] 2018 family report).
Conclusion as to relationship with [W]
The mother and [W] have a close bond but during 2018, that bond destabilised due to the conflict the mother has had with the older children and also [W]’s difficult relationship with his brothers.
The father returned [W], together with [Z] to the mother after August 2018.
I find that many of [W]’s concerns will now be alleviated by the older brothers not being in the household as conflict between the mother and the older children and [W] and the older children has ceased.
I find that this factor supports the ongoing arrangements whereby [W] continue to live with the mother in Brisbane.
Relationship with [Z]
During the first family report interviews [Z] (then aged 7) said “she liked that her mother cooks, helps her with her homework, there was nothing she did not like about her mother and she had no worries or concerns in relation to her mother” ([114] 2017 family report).
The mother said that [Z] is “a mummy’s girl, kind, caring” ([119] 2017 family report).
After the 2017 interviews, the family report writer comments that for [Z] to live with the father “would be a significant change… that may result in possible emotional distress and possible anxiety, particularly for… [Z] who… wish to reside with the mother and not move to Darwin” ([158] 2017 family report).
During the second family report interviews [Z] (then aged 8) told the family report writer:
a)“Living with mum” can be “fun…but sometimes rough with the boys fighting all the time ([Y] & [W])” ([66] 2018 family report).
b)“The mother generally putting in ‘effort and time’ into her parenting, but ‘most of the time it’s is stressful coz of the boys fighting’. [Z] added, ‘When there’s no fighting it’s very peaceful’” ([66] 2018 family report).
c)“When living with the mother, [Z] identified worrying about, ‘Mum getting angry with the boys’ and ‘Mum going to hospital’” ([66] 2018 family report).
d)“[Z] was of the belief that the reason the mother went to hospital was because, ‘Mum was too mad coz she couldn't handle us’” ([66] 2018 family report).
e)“Birdies perception of the mother was that ‘Mum is very busy…controlling the boys, making appointments and most of the time Mum is stressed out’” ([67] 2018 family report).
f)“[Z] said that it was a ‘tough choice’ between living with the father or mother as her preference… up here (Brisbane) wouldn’t be able to see Dad” ([69] 2018 family report).
g)[Z] commented that she missed her mother when “she lived with the father” ([68] 2018 family report).
The mother described her relationship with [Z] is “close” ([90] 2018 family report).
The family report writer noted, “[Z] has been described as being the closest to the mother by all parties” ([90] 2018 family report.
Conclusion as to relationship with [Z]
The mother and [Z] have a very close relationship.
During the first family report interviews [Z] said, “I get on with [W] the best” ([123] 2017 family report).
[W] agrees stating, “I get on good with [Z] but sometimes we fight” ([122] 2017 family report).
[Z] finds it stressful when the boys fight especially [Y] and [W] and is concerned about Mum and her stress around the boys.
The father does not understand how difficult it is for [Z] complaining to the family report writer that [Z] is “always escaping conflict between older brothers and was of the view she was developing ‘bad behaviour and attitude’” ([91] 2018 family report).
[Z]’s preference is “living with the mother” and “Dad lives here (in Brisbane) and we spend weekends and holidays with him” ([69] 2018 family report).
During cross-examination the second family report writer commented “I think from all the four children, she (referring to [Z]) was – seemed to more attached – most attached, I guess, to the mother, that’s for sure”
I find that [Z]’s concerns will now be alleviated by the older brothers not being in the household as conflict between the mother and the older children and [W] and the older children has ceased.
I find that this factor supports the ongoing arrangements whereby [Z] continue to live with the mother in Brisbane.
Overall conclusion
No parent is perfect and certainly, for the mother in this matter, there are limitations to her parenting.
As pointed out by the second family report writer “relocating the children away from the mother does not necessarily provide a solution to the issues that have been identified with the children living with the mother. What does stand out as concerning with this option is that there is no apparent consideration from the father as to the impact this could have on the children and their relationship with the mother and other family members. Nor does the father seem to consider the impact relocation of the children may have on the mother’s mental health and the subsequent problems this may pose for the mother’s capacity to parent the children” ([116] 2018 family report).
In cross-examination the second family report writer said “ the mother has been the children’s primary carer and attachment figure, as your Honour point out, with perhaps some imperfections, but certainly I believe, and I think I’ve stated this in my report, the mother has a genuine regard and care for the children, and I think that any further separation from the mother than what has already occurred in their lives could be potentially really damaging for these kids” and “it’s not in their (referring to the children’s) best interests to have their relationship with their mother essentially threatened”.
I find that there is nothing in the evidence to support the removal of the younger children from the mother to the father.
I further find that the evidence supports the older children remaining with the father.
Risk and issues for children with father
Family violence
In 2010 there was an incident where the father abused [X], the father punched the mother and the police were called.
As a consequence the police took out a domestic violence order (DVO) against the father which lapsed in 2012.
The mother describes, “there has been domestic violence on a couple of occasions, he…is a very heavy drinker and his behaviour towards me got worse after I had [Z]” ([81] 2017 family report).
There have been no reported incidents of family violence between the parties since 2011.
In 2015 with the father’s then partner, police were called twice to verbal altercations.
The mother at the first family report interviews said “she has never had any concerns or fears for her safety and that of the children from the father and he had never threatened to harm them” ([81] 2017 family report).
The family report writer concluded “whilst there would be risk of repetition of such conflict and violence, the risk of significant family violence after separation is low and mainly in the form of verbal and emotional abuse rather than physical abuse” although “this type of violence is still considered to be harmful to both parents and the children” ([139] 2017 family report).
Conclusion as to family violence
I find that whilst there has been family violence by the father that is it historical and therefore is not a factor that is relevant in determining the future parenting arrangements for the children.
Discipline of [Y]
During the first family report interviews:
a)“The mother did not raise any issues as to child abuse by the father” ([22] 2017 family report).
b)[X] said, “there was nothing he disliked about his father” ([87] 2017 family report).
c)[Y] “likes that his father is fairly strict” ([96] 2017 family report).
During the second family report interviews [Y] said “‘what Dad does and how he does it (parenting) is right’, ‘He’ll listen to you and your ideas’, ‘but at the same time if you don't listen or do what you’re told…..you get intimidated ….belted’. [Y] described belting as being smacked on the bum and intimated as the father ‘standing over you and being firm’. [Y] was of the belief that this approach worked better and actually gets me to ‘listen and behave’” ([82] 2018 family report).
The father admitted in cross-examination to:-
a)Using a belt to discipline [Y] on three occasions when the parties were living together.
b)In February 2016 when the father was intoxicated, placing his hands around [Y]’s neck after an incident where [Y] would not share with the other children. The father acknowledged during cross-examination that this was an inappropriate form of discipline.
c)Smacking [Y] on occasion
The father said in cross-examination that [Y]’s behaviour is getting better and [Y] is now getting too old to smack.
The father currently adopts other forms of discipline such as cutting [Y]’s hair on one occasion, threatening to smack the child, raising his voice, time out and banning computer games.
After the second family report interviews, the family report writer concluded “there are some concerns about the father’s reported disciplinary approach with the children, in particular any use of smacking. This would be identified as an area of improvement that the father should attempt to develop through engagement in parental training” ([115] 2018 family report).
Conclusion as to discipline
I find that physical discipline is inappropriate for the children, especially with [Y] who now responds to other forms of discipline.
I therefore order that the father not physically discipline the children.
Alcohol use
The father concedes that he drinks whilst caring for the children.
During the first family report interviews:-
a)[X] referred “to the father’s alcohol use in his interview reporting their father drinks alcohol, falls asleep and they get themselves to bed” ([142] 2017 family report)
b)“The father acknowledges using alcohol and openly admitted to being drunk when he has had the children in his care on a few occasions” ([142] 2017 family report).
c)“The father does not see his drinking as problematic and believes he drinks within reasonable amounts and denies falling asleep after consuming alcohol” ([142] 2017 family report).
In June 2018, the father’s CDT (Carbohydrate Deficient Transferrin) test results did not support excessive alcohol intake by the father.
The father has not undertaken any other CDT testing.
In the second family report interviews:
a)“The mother did not raise any current concerns with the father’s alcohol use and stated that if not for his alcohol problems, ‘he is a really good person underneath’” ([34] 2018 family report).
b)“[W] said that the father never had left them alone or fallen asleep etc. when drinking when recently living with him” ([73] 2018 family report).
c)The father “reported that he has not consumed alcohol at any problematic level for several years and was open to the testing ordered by the court to undergo” ([35] 2018 family report).
The family report writer concluded, “from the information available there was no substantive evidence to be concerned about the father’s current alcohol use” ([114] 2018 family report).
Conclusion as to alcohol use
The parties have entered into final parenting orders that provide that the parties will not consume alcohol over the legal limit when the children are in their respective care.
I find that such an order is effective to address the father’s alcohol intake.
Attitude towards mother
During the first family report interviews:-
a)[Y] “spoke about his concern that both his parents ‘hate each other’ and when his father says bad things about his mother he tells his father to stop and he feels scared, weak and not brave when he has to challenge his father” ([98] 2017 family report)
b)[Y] “stated his father says his mother is ‘ugly’ and this hurts him” ([98] 2017 family report).
c)[Y] “wants both his parents to stop saying bad things about each other to him and his siblings stating “’they need to stop it’” ([99] 2017 family report).
The ICL submits, “the father has not exhibited a willingness or ability to facilitate the children’s relationship with the mother”.
The father admits in cross-examination that he has interfered in the mother’s telephone calls with the older children in Darwin due to her calling every second day and the things the mother says on the phone.
This has resulted in the father terminating calls, refusing to answer calls and putting her calls on loudspeaker.
The parties have agreed to final orders whereby the children have reasonable communication with the parties.
Conclusion as to attitude towards mother
In this matter, the evidence supports that the parties are as bad as each other.
Their dislike and distrust of each other infiltrates their interactions with the children and places the children smack in the middle of the parental conflict.
During the first family report interviews it was noted:
a)“[X]… described being angry at his parents separation and the conflict that is continuing” ([151] 2017 family report).
b)“[Y] is a child caught between the conflicts between his parents; he has divided loyalties and worries about both his parents” ([148] 2017 family report).
c)“There is a risk for [W] that he could feel overwhelmed by his parents’ conflict and attempt to resolve it through becoming aligned to one parent. Although he presents as asymptomatic there is a danger he may feel confused, anxious and overwhelmed” ([149] 2017 family report).
d)“Children at [Z]’s stage of development believe in ‘fairness’ and want to please their parents. They may feel some responsibility for the separation and conflict and believe it is their responsibility to fix it. [Z] appears as a child who feels caught in the middle of her parents’ conflict and is at risk of becoming overwhelmed by, and struggling with, the behaviours of each parent with them both being derogatory and negative about the other. This can become confusing and results in her not knowing which parent to believe and can see her aligning with the mother when she is with her and the father when she is with him” ([150] 2017 family report).
In addition to being caught up in the conflict, the children have been shuffled around from household to household, state to state with little regard given by the parties, especially the father, as to the negative consequences this has on the children.
What is certain is:
a)The father wants some, if not all the children in his care.
b)The father will not leave Darwin.
c)The mother does not want the older children in her care.
d)The mother will not leave Brisbane.
e)The decision to separate the children and have two in Brisbane two in Darwin was a joint decision made by the parties.
Given this level of certainty and what the children have been through, I find that a continuation of the current circumstances where the older children live with the father in Darwin and the younger children live with the mother in Brisbane is the best outcome for this family,
Commitment to and ability to care for children
The ICL submits “throughout the course of this matter, the father has appeared to return to the children’s’ lives at his convenience and on his own terms” and has “demonstrated a concerning attitude towards parenthood and co-parenting which is a fundamental component of raising children”.
In the first family report it was noted:-
a)“When interacting with the children, the father had limited engagement with the children” ([127] 2017 family report).
b)“The father had difficulty managing [X] and [Y]’s behaviour” ([128] 2017 family report).
c)“The father offered very little stimulus to the children and appeared to be physically present but not emotionally engaged in the process” ([128] 2017 family report).
However after the second family report interviews it was noted “in the past year given the children spending time living with the father in Darwin, the father’s relationship with the children has seemingly improved” ([94] 2018 family report) with the family report writer observing:
a)“The children were initially observed with the father all together. The children and father interacted warmly, there was lots of laughter and humour between them. The children were comfortable seeking proximity to the father and eye contact was strong” ([95] 2018 family report).
b)“The father demonstrated fair knowledge of the children’s individual traits, likes and dislikes. The children similarly expressed fair knowledge of the father’s expectations and feelings towards them” ([96] 2018 family report).
c)“The father was rather quietly spoken and fairly reserved emotionally and in his expression and spoke appropriately and childminded to the children in ways they could connect with” ([97] 2018 family report).
d)“Upon the observation ending, all the children conveyed disappointment about the father leaving (back home to Darwin). [Z] and [W] were heard to say ‘we don't want you to go’. All embraced and expressed goodbyes to the father with warmth and some sadness. The father demonstrated some attunement to their feelings and tried to reassure the children” ([98] 2018 family report).
The mother in cross-examination does not “fault” the father as a parent.
The ICL concedes the father “does have capacity to care for the children and to meet their emotional and intellectual needs”.
Conclusion as to commitment
I find that whilst historically the father has not had the same level of commitment to the children as the mother, that in more recent time the father has shown a better understanding of the children’s needs and is able to provide the commitment needed to primarily care for the older children in Darwin.
Ability to provide stability
The ICL submits “there is no certainty… to the arrangements the father would put in place for the children in Darwin” or “to house the children given it was conceded in cross-examination that at the time of the trial the children were sleeping on mattresses in a living room”.
The father has secured a three bedroom rental house in Darwin with the children sleeping in the lounge room until the father can organise furnishings.
If all four children live with the father then he can convert the sunroom so that there are enough bedrooms for the children to share.
At times, the father travels away for work but the father states the children can stay with the father’s friends in Darwin during that time.
Conclusion as to ability to provide stability
I find that the current living arrangements are sufficient to meet the needs of the older children and given their ages, if the father does work away arrangements can be made for the children to stay with friends.
However such an arrangement would not be suitable for the younger children and in particular for [Z] who is only aged 8.
Therefore, this factor supports the younger children remaining with the mother in Brisbane.
Relationship with [X]
During the first family report interviews [X] (then aged 12) said:
a)“He liked fishing and going to the skate park with his dad” ([87] 2017 family report).
b)“He would speak to his dad if he was worried or concerned about something” ([88] 2017 family report).
The father said:
a)[X] is “quiet compared to the others, generally well behaved, testing what behaviours he can get away with and he starting to come out of his shell” ([116] 2017 family report).
b)“He has a good relationship with [X] and enjoys providing him with encouragement when they are together” ([116] 2017 family report).
During the second family report interviews [X] (then aged 13) said:
a)“At Dad’s there’s more food and we sleep earlier” ([97] 2018 family report).
b)The father is “stricter and it works for us…it’s a quieter house be- cause of it” ([87] 2018 family report).
Conclusion as to relationship with [X]
I find that the father and [X] have a meaningful relationship and that this relationship is able to continue with [X] remaining in Darwin with the father.
Relationship with [Y]
During the first family report interviews [Y] (then aged 11) said:
a)“He… likes bonding with him and the fact his dad is an outside person and they ride his dirt bike” ([96] 2017 family report)
b)“He described no significant issues in relation to his experience of living with either parent” ([100] 2017 family report).
The father said:
a)[Y] is “quick witted, he doesn’t know when to stop though, he is cheeky, a good and loving boy” ([117] 2017 family report).
b)“He has a good relationship with [Y] and [Y] responds well to him but needs ‘pulling into line sometimes because of his attention deficit hyperactive disorder’” ([117] 2017 family report).
During the second family report interviews [W] commented “’when [Y] is around Dad, he does change a lot, isn't as rough or mean’ and that this makes a difference” ([74] 2018 family report).
During the three months [Y] was in the father’s care in early 2018 the father reported:
a)“After a period of time [Y]’s behaviour improved at home and at school” ([79] 2018 family report).
b)The father attributed this to “at a minimum getting him to bed on time so he could function at school”, and providing “‘firm consequences’ for disobedient, defiant and inappropriate behaviours” ([79] 2018 family report).
c)“[Y] began demonstrating more respectful behaviour and was more active in his schoolwork” ([79] 2018 family report).
During the second family report interviews [Y] (then aged 12) said:
a)“[Y] described living with the father as ‘much more normal’ describing it in terms of order and the father being in charge ([82] 2018 family report).
b)“Dad is more strict… Mum doesn't pull us up” ([80] 2018 family report).
Conclusion as to relationship with [Y]
The evidence supports that the father has an understanding of [Y]’s needs and the ability to handle [Y]’s behavioural issues.
I find that the father and [Y] have a meaningful relationship and that this relationship is able to continue with [Y] remaining in Darwin with the father.
Relationship with [W]
During the first family report interviews [W] (then aged 9) said:
a)“He was careful to not say anything derogatory about his father and was in fact quite protective of him” ([101] 2017 family report).
b)“He likes that his father takes him fishing, lets him sleep over at his friend’s house and go to the park by themselves” ([105] 2017 family report).
c)“There was nothing he did not like about his father and he had no worries or concerns in relation to his father describing him as “calm.” ([105] 2017 family report).
The father said:
a)[W] is “a very loving boy who has a quick temper and gets easily annoyed, he loves sports” ([118] 2017 family report).
b)The father has a “really good relationship” with [W] ([118] 2017 family report).
Conclusion as to relationship with [W]
The father has a strong and loving relationship with [W].
I further find that as the meaningful relationship between the father and [W] is established, that whilst [W] may not physically spend time with the father that their relationship can be nurtured through telephone calls.
Relationship with [Z]
During the first family report interviews [Z] (then aged 7) said:
a)“She liked that her father took her to the water park” ([115] 2017 family report)
b)“There was nothing she disliked about her father and she had no worries or concerns in relation to him” ([115] 2017 family report).
The father said:
a)[Z] is “smart, she sits quietly in the background and picks up a lot, it is hard for her with three older brothers, and she is helpful and polite” ([119] 2017 family report).
b)The father “has a good relationship with [Z]” ([119] 2017 family report).
Conclusion as to relationship with [Z]
The father has a strong and loving relationship with [Z].
I further find that as the meaningful relationship between the father and [Z] is established, that whilst [Z] may not physically spend time with the father that their relationship can be nurtured through telephone calls
Overall conclusion
I find that there is nothing in the evidence to support the removal of the younger children from the mother to the father.
I further find that the evidence supports the older children remaining with the father.
What the experts had to say
The first family report writer opined:
a)“The parents appear to have little capacity to resolve their adult issues and focus on the needs and well-being of the children” ([153] 2017 family report).
b)“Ideally, it would be optimal for the children to have both parents live in close proximity to one another to allow them to have an unimpeded relationship with each of them, with each parent feeling supported in their respective parenting roles” but that “this unfortunately does not appear to be possible in this matter” ([135] 2017 family report).
The second report writer opined:
a)“The main concern identified in relation to the father is his demonstrated reluctance to relocate closer to the children and their family in Brisbane. This is confusing and concerning” ([116] 2018 family report).
b)“If the father were to live in closer proximity to the children and mother, and the mother engage in mental health intervention and parental training focused on improving her parental skills and also her ability to manage her own emotions, this family would benefit. As would the consistency between parental styles. The children are not certain in their views about living with one parent or the other, and such an arrangement would therefore take the responsibility or stress about making a choice to largely abandon the other parent (given the proximity distance between parents at the moment)” ([117] 2018 family report).
c)In cross-examination, “so I think the ideal solution is for – that would help that to happen, if you like, would be for the father to live in closer proximity to the mother and that therefore the children can spend time with both parents, but also that the mother acknowledges some of the issues she’s facing as a parent, as a parent, and I guess really accepts that, or develops insight into that”.
What are the future parenting arrangements for the children?
The evidence and findings support that there is only one viable outcome for these children given the choices the parties have imposed on the children despite the experts recommendations that the children’s interests are best served by the parties living in close proximity to each other.
The viable option is for the older children to remain living with the father in Darwin and the younger children living with the mother in Brisbane.
Due to financial restraints of each of the parties the spend time with arrangements are fluid and based on what can be organised between the parties.
As this is the only viable option then this represents what can only be determined as being in the best interests of the children.
Parental responsibility
The parties have a toxic relationship with limited communication.
In the first family report interviews:
a)The mother “described the relationship with the father as ‘non-existent’ claiming the father does not communicate with her in relation to the children; he does not reply to her text messages and she receives no response from him. She has no ideas how they could improve their communication as they move forward stating she would be prepared to use an electronic communication tool” ([79] 2017 family report).
b)The father “claims no relationship with the mother stating the mother is still rude and verbally abusive towards him. He stated he tries not to talk to her and that the mother was unappreciative. He also could not see a way to improve communication in the future” ([80] 2017 family report).
c)“Both parents described how they find interacting and communicating with each other extremely difficult, each blaming the other” ([152] 2017 family report).
d)“Their main strategy for avoiding conflict is limiting their communication, though they do appear to be able to contain themselves at changeovers with limited interaction” ([152] 2017 family report).
e)“Their main method of communication is through text messaging. Both parents report this method of communications not working for them” ([152] 2017 family report).
During the second family report interviews it was noted:
a)“The co-parenting relationship is best characterised as non-communicative, with a level of resentment and mistrust” ([58] 2018 family report).
b)“Both parents reported a tendency to avoid communication with each other” ([59] 2018 family report).
c)“The mother reported that the father can be narcissistic, cold and selfish when he communicates with her. However the mother said, “I want him to be happy he is a good person underneath” ([59] 2018 family report).
d)“The father said he kept communication with the mother to a minimum as he does not know “what mood to expect from her”. The father described the mother as having the potential to be “abusive, nice or cranky” ([60] 2018 family report).
e)“Neither parent was confident that a working co-parenting relationship could be developed in the future” ([61] 2018 family report).
Conclusion as to parental responsibility
I find that given the state of the parties’ relationship and their inability to communicate that it is not in the children’s best interests for the parties to have equal shared parental responsibility for the children.
Therefore the presumption of equal shared parental responsibility as provided for in section 61DA(1) Family Law Act 1975 is rebutted in accordance with section 61DA(4).
I order that the father have sole parental responsibility for the older children and the mother have sole parental responsibility for the younger children.
I certify that the preceding two hundred and thirty-nine (239) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 22 May 2019
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
0
5
2