Debona & Debona
[2021] FCCA 980
•12 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Debona & Debona [2021] FCCA 980
File number: MLC 2521 of 2017 Judgment of: JUDGE O'SULLIVAN Date of judgment: 12 May 2021 Catchwords: FAMILY LAW – dispute over order for equal shared parental responsibility – live with orders for the children agreed – dispute over time spent orders for the children – evidence of report writer – dispute over order for restraint on time with paternal grandmother – application for overseas travel and passports – final orders in the children’s best interests. Legislation: Family Law Act 1975 (Cth) ss 11F, 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 67Z, 68R
Australian Passports Act2005 (Cth)
Cases cited: Albert & Plowman [2020] FamCAFC 23
Goode & Goode (2006) FLC 93-286
MRR & GR (2010) 240 CLR 461
Lansa & Clovelly [2010] FamCA 80
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
R&R: Children's Wishes (2000) FLC 93-000
Beard & McCarthy [2009] FamCA 737
Penski & Kocher [2013] FamCA 255
Dundas & Blake [2013] FamCAFC 133
Vallans & Vallans [2019] FamCAFC 260
Heath & Hemming (No. 2) (2011) FamCA 749
Johns & Jasapas [2016] FamCA 471
Kuebler & Kuebler (1978) FLC 90-434
Withers v Russell & Anor [2016] FamCA 793
Mosman & Taylor Mosman [2018] FamCA 842
Number of paragraphs: 192 Date of hearing: 17, 18, 19, 22 and 23 March 2021 Place: Dandenong Counsel for the Applicant: Ms Swart Solicitor for the Applicant: Barbayannis Lawyers Pty Ltd Counsel for the Respondent: Ms Paterson Solicitor for the Respondent: Robinson Gill Solicitor for the Independent Children's Lawyer: Mr Foo Solicitor for the Independent Children's Lawyer: Aitken Partners Pty Ltd ORDERS
MLC 2521 of 2017 BETWEEN: MR DEBONA
Applicant
AND: MS DEBONA
Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
12 MAY 2021
THE COURT ORDERS THAT:
1.All extant parenting orders be discharged save that the appointment of the Independent Children’s Lawyer be discharged thirty (30) days after the date of judgment in this matter.
2.The mother have sole parental responsibility for the children, X born in 2011 and Y born in 2013 (“the children”).
3.Subject to these orders, prior to making any final determination with respect to the children’s long term care, welfare, and development, the mother shall:
(a)advise the father in writing (including by way of SMS text message) of the necessity to make a decision for the children (or either them);
(b)seek the father’s written response (including by way of SMS text message) with respect to the decision to be made;
(c)consider any response provided by the father prior to making a final decision; and
(d)advise the father in writing (including by way of SMS text message), as soon as is reasonably practicable, of the decision taken.
4.The children live with the mother.
5.The children spend time with the father:
(a)commencing from 21 May 2021, each alternate weekend from the conclusion of school on Friday (or 4.00pm if a non-school day) to the commencement of school on Monday (or 9.00am if a non-school day) and such time to continue through all school holiday periods in the existing cycle, but be extended such that instead of concluding on Monday it shall conclude at 4:00pm on the Tuesday;
(b)in the event that the children are not already in the father’s care on each of the children’s birthday(s) and the father’s birthday, for a period of three hours at times to be agreed between the parties and in default of agreement from 4:00pm until 7:00pm if the birthday falls on a school day and from 10:00am until 1:00pm if the birthday falls on a weekend;
(c)from 10:00am until 5:00pm on Father’s Day;
(d)from 3:00pm on Christmas Day until 3:00pm on Boxing Day in 2021 and each alternate year thereafter;
(e)from 3:00pm on Christmas Eve until 3:00pm on Christmas Day in 2022 and each alternate year thereafter;
(f)otherwise as agreed in writing (including by text message).
6.The time spent by the children with the father pursuant to 5 hereof be suspended as follows:
(a)in the event that the children are not already in the mother’s care on each of the children’s birthday and the mother’s birthday, for a period of three hours at times to be agreed between the parties and in default of agreement from 4:00pm to 7:00pm if the birthday falls on a school day and from 10:00am to 1:00pm of the birthday falls on a weekend;
(b)on Mother’s Day from 10:00am until 5:00pm;
(c)from 3:00pm on Christmas Eve until 3:00pm on Christmas Day in 2021 and each alternate year thereafter;
(d)from 3:00pm on Christmas Day until 3:00pm on Boxing Day in 2022 and each alternate year thereafter.
7.The parents ensure the children continue to attend V School until the completion of Grade 6 for each child.
8.Upon each of the children being eligible for enrolment in secondary school, the parents shall enrol the children in B School (commencing in the Suburb C Campus) with each parent equally responsible for the school fees for the children.
9.All changeovers that do not occur at the children’s school shall occur at KFC Suburb D Shopping Centre and each parent may nominate a family member or friend to assist with changeover if either parent is not able to attend; and both parents shall ensure that no more than one person each attends changeovers for the children.
10.Each parent is restrained by injunction from:
(a)denigrating the other parent or extended family members in the presence or hearing of the child/ren and use their best endeavours to prevent any third party from so denigrating and remove the child/ren from any situation whereby a third party attempts to denigrate the other parent or extended family members;
(b)discussing any details of these proceedings with the child/ren or allowing any other third party to do so.
11.Both parents forthwith enrol in and complete the Tuning into Teens Program or similar program as approved by the Independent Children’s Lawyer and provide proof of enrolment and completion to the other parent’s solicitors within 24 hours of obtaining a certificate of completion.
12.Both parents keep each other informed of:
(a)any significant injuries or illness that the child/ren suffers whilst in their care, as soon as practicable, following such injury or illness;
(b)any instances where the child/ren need(s) urgent medical attention during their time with the child/ren, immediately if possible, or otherwise as soon as practicable thereafter;
(c)any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in cases of emergency (with the parent in whose care the child/ren are in to inform the other parent immediately), with each parent permitted to visit the child/ren in hospital irrespective as to with whom the child/ren are staying at the time of such hospitalisation; and
(d)any general medical or health issues relating to the child/ren, including but not limited to particulars of any medication prescribed to the child/ren and names and contact details of the prescribing health practitioner and such medication must be provided to the other parent via text or email, if applicable.
13.Both parties authorise the general medical practices at which the children attend when in their respective care, to obtain from and exchange with each other any information they may require.
14.The parents ensure that, save for emergencies, for the purposes of any dental or orthodontic treatment for either child, the children are taken to the Town E Dental Surgery at F Street, Town E.
15.The parents ensure that Y continues to attend upon Mr G, psychologist, and that X continues to attend upon Ms H, psychologist, at J Psychology.
16.The parties communicate by text message and email about the care welfare and development of the children, save for the case of a serious medical emergency when such communication may be telephone.
17.The parents do all such acts and things necessary to keep the other informed at all times of and any changes to (within 48 hours of any change):
(a)their residential and postal address; and
(b)their mobile telephone numbers and email address.
18.Each of the parents are authorised to receive copies of all school reports, school photograph order forms and school related documentation normally sent to parents (at their own expense) and attend all parent teacher interviews, extracurricular activities including concerts, plays, sporting events and the like, normally attended by parents.
19.The mother be at liberty to provide the children’s treating health practitioners and psychologists with a copy of the reports of Dr K and any final orders made in these proceedings.
20.The mother be at liberty to produce to the Magistrates’ Court of Victoria, Victoria Police, the Department of Families, Fairness and Housing copies of these final orders and any reasons.
21.The parents each purchase a (separate) iPad for both children to be used at their respective homes.
22.Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
23.Pursuant to section 68P of the Family Law Act 1975, to the extent that any parenting arrangements that are specified in these orders are inconsistent with the current terms of any existing Intervention Orders these orders take precedence over the existing Intervention Order with Case Number ....
24.All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Orders 4 and 7 to 23 were by consent.
B. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Debona & Debona is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
These proceedings concern a dispute over parenting orders under the Family Law Act 1975 (Cth) (“the Act”) for the children, X born in 2011 and Y born in 2013 (collectively, “the children”).
The applicant in these proceedings is Mr Debona (“the father”) who is 41 years old, lives in Suburb L, and works as a factory worker. The respondent in these proceedings is Ms Debona (“the mother”) who is 33 years old, lives in Town E, and works as a professional.
This is not the first time that the parties have been involved in a dispute about parenting orders for the children. In 2018, the parties, when they were both represented (by the same solicitors who act for them in these proceedings) agreed on final orders for the children. Less than 12 months later, they returned to Court.
The parties are still mired in the various stages of grief and unable to do anything other than litigate over the remnants of their most intimate relationship. The anger, rancour and malice that so often attends disputes over parenting orders was, in this case, accompanied by weariness, desperation, fear and despair about what would become of the children.
While the parties have been caught up in that struggle, the experts involved with the children have profound concerns about the harm done to the children. One of those experts said “this is one of the more dysfunctional post-separation relationships between two parents that I have been involved with in almost two decades.” Regrettably, and having heard the evidence in these proceedings, I agree. The same expert also said (Cassandra like) that:
…these parents have consumed resources, both public and private, at enormous time and expense, over the last four years; their separation was highly acrimonious, arguably beginning a trajectory of hostilities that will persist for years into the future; there have been consistent issues at changeover, with the children currently being ferried between their parents' care by members of the paternal family; there have been several applications for intervention orders and undertakings, including the most recent which was initiated by the respondent mother in September 2019; any communications that have occurred between the parties since binding final orders at the end of 2018 have been strained, or agitated, or completely lacking; there have been innumerable notifications to police and Child Protective Services relating to the children. This fact pattern shows that despite any overtures about working collaboratively that these parents may make during assessments, or indeed in open court for that matter, do not align with the way in which they behave in situ.
BACKGROUND
The father and the mother were married in 2005 after the father had travelled to Country N where he met the mother, who was almost a decade younger than him.
The father and the mother began living together (in the same house in Suburb L as the father’s brother) in 2006 and separated a decade later in June 2016. At the time of separation, the father, the eldest child and his brother left the Suburb L property and stayed with his parents. In August 2016, the mother and the youngest child moved from the Suburb L property. The father, his brother and the eldest child returned to occupy the Suburb L property. In January 2017, the father took the eldest child for a physical examination by the Police. Proceedings were then commenced by the mother in March 2017 for parenting and property orders. At the first Court date, interim orders were made for both children to live with the mother and spend time with the father.
The first family report was released in May 2017. Later that month, a final intervention order was made against the father. In July 2017, the parties compromised their property dispute and final property orders were made by consent. The second family report was released in August 2018 in preparation for the trial that had been fixed for November 2018.
In the shadow of that trial and on 2 November 2018, the parties asked Judge Williams (as Her Honour then was) to make final parenting orders by consent, which provided for, amongst other things, equal shared parental responsibility, the children to live with the mother and spend substantial and significant time (five nights a fortnight) with the father as well as shared time on holidays and special occasions.
Within months of the final orders being made the Department of Health and Human Services (“the Department”) (as it was then known) became involved with the children because of reports made alleging that they were being harmed.
Throughout the course of 2019 there were repeated interventions by the Department and case workers that it engaged from O Family Services. In September 2019, the mother made an application for an intervention order against the father (naming herself and the children as affected family members) alleging that:
The respondent is my ex-husband. We separated four years ago and have two daughter’s together, X (3) and Y (5). There are Family Court orders in place allowing the children to live with me and spend each fortnight and half of the school holidays with their father.
The respondent was physically, emotionally and verbally abusive throughout the relationship, particularly when I was pregnant with our second child and he found out I was having another daughter. He wanted a son. After I left the respondent in 2016, he and his mother took our eldest daughter and I did not get her back for 12 months after I went to the Family Court to obtain Family Court orders. The Family Court orders initially suspended the respondent’s access for three months before the final orders were made allowing him fortnightly access.
…
I am concerned about the psychologically wellbeing of our daughters as the respondent is constantly saying negative things about me to them, such as I tried to stab him with scissors, I used to hit him and I cheated on him. He is constantly reporting me to DHS and has called the Police accusing me of hitting our daughter. He has also told them my food is bad, resulting in them refusing to eat on occasion. The allegations are unfounded, DHS referred the matter to O Family services who put in place a support worker to assess our family to ascertain the impact of the respondent’s behaviour on our children and determine if he has any capacity to change. The support worker has been in place for approximately four months and the respondent’s behaviour has not improved.
It has also been arranged for our daughters to see a psychologist. The respondent is not supportive of this and has threatened to take me to court if I take them to their appointments. He also refuses to take them to their appointment if they are in his custody.
I am seeking an intervention order against the respondent to protect our daughters from him constantly filling their heads with negative thoughts about me, his constant accusations of me abusing the girls and reporting me to DHS and the Police. This is having a significant psychological impact on my daughters and I do not believe his behaviour is going to change.
The mother obtained an ex parte interim intervention order with herself and the children as affected family members. The intervention order suspended the final parenting orders pursuant to s.68R of the Act.
In the father’s application filed on 24 September 2019 in this Court he sought on a final basis that the children live with him. The mother filed a response on 3 October 2019 in which she sought inter alia that the father’s time with the children be determined following the release of an updated family report.
There were interim orders made on 7 October 2019 for the appointment of an Independent Children’s Lawyer and a child inclusive conference to be conducted on 11 October 2019. The Department provided a s.67Z response to the notice of risk indicating there had been sixteen previous reports about the children between 2016 and 2019.
On 11 October 2019, after the child inclusive conference there were interim parenting orders made (by consent) for the children to continue to live with the mother and spend supervised time with the father as well as a restraint on the father bringing the children into contact with certain members of the paternal family. Following these orders the children spent supervised time with the father between November 2019 and February 2020. By this time, both children were seeing psychologists and the mother and the children had moved to Town E.
On 4 March 2020, there were interim parenting orders made (by consent) for the children to spend unsupervised time including overnight with the father, the restraint on the paternal family was relaxed and there was an order for an updated private report (“the Report”).
After the Report was released in June and on 12 August 2020 further interim parenting orders were made by consent extending time that the children spent with the father and the matter was fixed for trial commencing on 17 March 2021. The father filed an amended application on 16 February 2021.
At trial, the father was represented by Ms Swart of Counsel. The mother was represented by Ms Paterson of Counsel. The Independent Children's Lawyer was represented by Mr Foo of Counsel. The trial commenced on 17 March 2021 and concluded on 23 March 2021 at which time judgment was reserved. The parties, through their solicitors, provided the Court with a three volume court book and a tender bundle comprising of two separate folders. I do not intend to recite all of the evidence at trial. However, all of that evidence, the material which the parties relied on, the exhibits before the Court, and the submissions made by the parties has been considered and taken into account.
AGREED ORDERS
At the start of the trial the Court was told that the parties, with the intensive assistance of Counsel, were able to agree on a number of orders. These were orders which had the support of the Independent Children’s Lawyer which the parties asked the Court to make by consent. A minute of the agreed orders is at Appendix A to these reasons.
In summary, the parties agreed on orders for schooling for the rest of primary and enrolment in secondary schools for both children, attendance by the children at their existing psychologists, arrangements for dental and other medical treatment, a series of restraints on each of them, notification and access to information requirements and arrangements for changeover where it did not otherwise happen at school. The parties also agreed that they should attend parenting courses centring on parenting teenagers.
ISSUES IN DISPUTE
The parties also prepared a joint document which identified the remaining issues in dispute. In summary, at the start of the trial, those issues were:
(a)parental responsibility;
(b)the time the children should spend with the father each fortnight;
(c)telephone communication;
(d)time for the children over the holidays and overseas travel;
(e)time on Mother’s and Father’s Day;
(f)time at Christmas;
(g)time on birthdays;
(h)passports.
As matters transpired the issues in dispute between the parties further narrowed as a result of concessions made during each parties’ evidence before the Court such that by the close of the evidence those issues were:
(a)parental responsibility;
(b)the time the children should spend with the father each fortnight;
(c)telephone communication;
(d)time for the children over the holidays and overseas travel;
(e)passports.
OVERVIEW OF POSITON(S) ON THE SUBSTANTIVE MATTERS THAT REMAINED IN DISPUTE
It was the mother’s case that soon after final orders were made in 2018 things began to deteriorate. The mother’s case was that the parties were not able to communicate, were not able to agree on psychological assistance for the children and there were ongoing difficulties as a result of the children’s exposure to the parental family who were unable to regulate their emotions. It was the mother’s case that the children were repeatedly involved with the Police and the Department because of specious claims that they were at risk and had been emotionally harmed as a result of their involvement with the paternal family. For these reasons it was the mother’s case, particularly given the recommendations in the Report, that she should have sole parental responsibility, the children should live with her and spend “limited time” with the father.
It was the father’s case that the final orders made in 2018 provided for the parties to have equal shared parental responsibility (and despite what he said were the false allegations made against him by the mother about malicious notifications to the Department) this should continue. It was the father’s case that the children have spent far less time with him since the intervention order made in 2019 and this was not in their best interests. The father, in his case outline, relied on the children’s wish to spend more time with him and asserted that a shared care arrangement would not have an impact on the children and would in fact, improve their psychological wellbeing.
The Independent Children’s Lawyer reserved her position on the issue of parental responsibility until the conclusion of the evidence. The Independent Children’s Lawyer took the position that the children needed to stay with a primary carer and spend time with the non-resident parent.
MATERIAL RELIED ON
At the commencement of the trial, Counsel for each of the parties identified (by reference to the case summaries filed on behalf of their respective clients) the material that was relied on.
Counsel for the father told the Court that her client relied on the following:
(a)the amended initiating application filed 16 February 2021;
(b)the trial affidavit of the father filed 16 February 2021;
(c)the affidavit of Mr P (‘the paternal uncle’) filed 15 February 2021;
(d)the affidavit of Dr K (‘the report writer’) filed 26 June 2020;
(e)the affidavit of Mr Q (‘the father’s counsellor’) filed 28 February 2020;
(f)the affidavit of Ms R (‘the supervisor’) filed 25 February 2020
(g)the notice of risk filed 24 September 2019.
Counsel for the mother told the Court that her client relied on the following:
(a)the affidavit of the mother filed 2 March 2021;
(b)the affidavit of Mr S (‘the mother’s partner’) filed 2 March 2021;
(c)the affidavit of Ms M (‘the mother’s psychologist’) filed 5 August 2020;
(d)the notice of risk filed 3 October 20119;
(e)the family reports of the report writer dated 29 August 2018 and 12 May 2017 (and the one under cover of the affidavit in paragraph 27(d) above);
(f)the s.11F child inclusive conference memorandum dated 14 October 2019; and
(g)the affidavit of the supervisor filed 25 February 2020.
Counsel for the Independent Children’s Lawyer told the Court that his client relied on the following:
(a)the affidavit of the report writer filed 26 June 2020.
DEPARTMENT’S S.67Z RESPONSE
On 9 October 2019, the Department provided a s.67Z response to the Notices of Risk filed by the parties at the commencement of these proceedings. The response included the following:
Child Protection History
There has been 16 previous reports to Victorian Child Protection between 2016 - 2019 with one period of Protective Intervention (March - May 2019) and one Investigation and Assessment (January - February 2017). The remaining reports have closed at Intake. Historical concerns have been in relation to physical and emotional harm to the children, significant parental hostility and conflict, family violence perpetrated by the father, Mr Debona to the mother, Ms Debona, and allegations of the children disclosing physical abuse from Ms Debona.
The most recent report to Child Protection was received in September 2019 which closed at Intake. The concerns were in relation to Y presenting with a bruise which was reported to be significant in size. Further concerns were reported that Ms Debona was medically neglecting the children. The Sexual Offences and Child Abuse Investigation Team (SOCIT) attended Mr Debona's address and conducted a body check of Y, with one minor bruise being sighted on her shin. Y indicated Ms Debona caused the bruising, however was unable to provide further context or details. It was reported the children appeared quite 'coached' in their speech when coming from Mr Debona's care. Further concerns were reported in relation to the impact of the ongoing reporting and various professionals frequently checking in with the children.
Summary of Current Protective Concerns
A Notice of Risk was received on the 25th September 2019. The concerns raised were primarily historical in nature. It was reported that there had been a Child Protection involvement in March 2019 around Ms Debona's 'ill-treatment' of the children. It was reported that in August 2019 Y presented with a bruise on her hip disclosing Ms Debona had hit her. It was reported that on the 16th September 2019, Y sent Mr Debona an image of a large bruise on the back of her leg, however given an Intervention Order in place, Mr Debona was unable to reply. It was further reported that Ms Debona has been aggressive when intoxicated, and has verbally and physically abused the children and Mr Debona.
A further Notice of Risk was received on the 4th October 2019. The concerns raised were in relation to the children being exposed to family violence perpetrated by Mr Debona including physical and emotional abuse of Ms Debona, Mr Debona making unfounded allegations of physical abuse against the children to Child Protection and the police, Mr Debona not taking X to psychological appointments and commenting on her weight, manipulation of the children by Mr Debona, and Mr Debona being hostile and uncommunicative with Ms Debona. Concerns were raised in relation to the children's poor mental health given this.
Mr Debona's affidavit was obtained and reviewed, given allegations of a new bruise on Y which Child Protection were not previously aware of. There was no information in the affidavit to indicate where the bruise allegedly came from.
Outcome
It is assessed that Child Protection will close at Intake. The current report raises concern about the alleged emotional and physical abuse of the children by Ms Debona which Child Protection are aware of and have assessed, and the concerns in relation to Mr Debona's perpetration of family violence and emotional abuse of the children, which Child Protection are aware of and have previously assessed. There appears to be ongoing parental acrimony and conflict, which is likely having an emotional impact on the children. Child Protection have previously assessed the allegations of physical abuse perpetrated by Ms Debona, and have not been able to substantiate these concerns, however have substantiated Mr Debona for emotional harm of the children. It is assessed that based on the current information, there is no role for Child Protection.
SECTION 11F MEMORANDUM
As a result of orders made on 7 October 2019 the parties and the children participated in a child inclusive conference pursuant to s.11F of the Act on 11 October 2019. The family consultant who met with the parties and the children was not required for cross examination. The memorandum prepared as a result of that conference included the following:
Co-Parenting Relations
The co-parenting relationship is difficult and acrimonious to which the children are exposed. The parents have been unable to develop a co-parenting relationship in the four plus years since separation or with two family reports identifying the issues and Final Orders in 2018.
Ms Debona is wearied by the dispute and the repeated and constant allegations made by Mr Debona. The impact of repeated attendances from police, DHHS, and the interviews at school are having on the children, as well as their third attendance for Court related matters.
Mr Debona repeatedly said he wants to change and wants the communication or lack of, to change between he and Ms Debona. Despite his impassioned statements of wanting to change, this pattern of acrimonious and hostile communication and repeated presentations of the children to authorities has been ongoing for four years and needs to stop.
The parties were referred by DHHS to O Family Services, with each parent initially having a separate worker allocated to them. Sometime in 2019, the mother’s worker became the father and mother’s worker. Ms U is reportedly now supporting both parents, which appears to this writer, to be a conflict of interest especially given the reported family violence by each parent.
Ms U is reported by Ms Debona to have both encouraged and supported her to apply for an Intervention Order, which has been granted.
Mr Debona informed he spoke with Ms U on Tuesday 8/10/2019, and informed her there was an Intervention Order, of which Ms U indicated she was aware. The writer is concerned if this is what occurred, that there may be confusion in the role of Ms U and as to who she is supporting, which is likely not helpful to either parent.
Future Directions
Ms Debona is to have day to day decision making for the children and to inform Mr Debona of any changes to the children’s education, any medical emergencies, any proposed travel arrangements both interstate and overseas and any changes to her address and contact details.
Mr Debona is to spend supervised time with the children commencing as soon as possible with a private supervisor. Times to be agreed between the parties and or the ICL.
A report is to be prepared for the Court, from the supervisors regarding the time spent between the father and the children.
The paternal grandmother and paternal uncle are not to attend time spent during this initial period of supervised time. This may warrant review after the initial report is before the Court.
Mr Debona is to attend for psychological therapeutic counselling with a psychologist under a mental health plan for ten sessions, fortnightly. A report is requested.
Ms Debona is to attend for psychological therapeutic counselling with a psychologist under a mental health plan for ten sessions. A report is requested.
X is to continue to attend with her current treating psychologist.
The parents are to attend a Parenting Orders Program (POP)
The parents are to consider using FAMCAL, a phone App, which is free and can be used as a means of communication that is respectful and pertains only to the children and their needs.
There is consideration for this matter to be returned after a period of supervised time to assess the progression of the children’s time with their father and Mr Debona’s behaviours and responses to the children in a structured and supervised environment.
AFFIDAVIT OF THE SUPERVISOR
As a result of interim orders made on 11 October 2019 the father’s time with the children was supervised. Ms R, the Manager of the Family Contact Service swore an affidavit on 25 February 2020 annexing an observational report of the children’s time with the father between November 2019 and February 2020. Ms R was not required for cross examination and the historical observations in that report will be taken into account along with the rest of the evidence.
THE REPORT
Dr K is a forensic psychologist with fifteen years' of experience. He had prepared family reports in the context of the previous proceedings between these parties in June 2017 (Exhibit ICL5) and August 2018 (Exhibit ICL6).
Dr K was engaged by the parties again during the course of these proceedings to prepare an updated family report to assist them and the Court. The Report prepared by Dr K (“the report writer”) was dated 1 June 2020 and was marked as Exhibit ICL7. It said inter alia:
…
28. Having now had the opportunity to observe the situation with this family unfold over several years, it is my increasingly consolidated opinion that these are two parents who will never be able to co-parent their daughters effectively. The fact pattern is as follows: there is a history of family violence allegations, emanating from both sides; these parents have been in dispute almost constantly since their separation in the middle of 2016; these parents have consumed resources, both public and private, at enormous time and expense, over the last four years; their separation was highly acrimonious, arguably beginning a trajectory of hostilities that will persist for years into the future; there have been consistent issues at changeover, with the children currently being ferried between their parents' care by members of the paternal family; there have been several applications for intervention orders and undertakings, including the most recent which was initiated by the respondent mother in September 2019; any communications that have occurred between the parties since binding final orders at the end of 2018 have been strained, or agitated, or completely lacking; there have been innumerable notifications to police and Child Protective Services relating to the children. This fact pattern shows that despite any overtures about working collaboratively that these parents may make during assessments, or indeed in open court for that matter, do not align with the way in which they behave in situ. Beyond what are very clear markers of dysfunction, my assessment is that these parents fundamentally distrust each other. There is no goodwill or mutual understanding. Anything relating to these children that can be interpreted as nefarious or pernicious is certainly construed as such on both sides. These parents have consolidated beliefs about one another which are likely unamenable to any intervention. I would add that Mr Debona continues to present as angry and aggrieved about the situation in which he finds himself, much of which he attributes to the conduct of the respondent mother. It is questionable whether he truly accepts the breakdown of the marriage, even now, years later. He tends to present as obstinate and belligerent in relation to arrangements for these girls.
29. Whereas I was once of the opinion that these children would be better served by both parents remaining responsible for decisions affecting X and Y, there is now a far more compelling argument for sole parental responsibility. There is now provable, unambiguous evidence these parents cannot work together in any functional way. Indeed, their very proximity causes their children palpable distress. Ms Debona argues that her efforts to gain professional support for X by linking her with a psychologist have been derided by the applicant father. There are notes from the subpoenaed materials that suggest obvious unease when these parents have jointly attended parent-teacher interviews. These parents have disagreed about travel, living arrangements, and activities for these children. Given X and Y's ages, there are still many further decision points around which the parties may come to disagree, including professional interventions, medical and dental issues, travel, extracurricular pursuits, and school requirements. There is also a complete paucity of functional exchanges between these parents in relation to the day-to-day needs of their daughters, with X and Y effectively having to act as a conduit between their mother and father, amplifying their burden. It is my view that should the court determine that joint parental responsibility remain in place, some other mechanism needs to be implemented to ensure that these parents do not wind up in the Family Law system when they inevitably disagree about some decision relating to their daughters.
30. As has been noted by every professional involved with this family over the years, it is obvious that X and Y have been profoundly affected by the difficulties between their parents. The children report being questioned by both their mother and their father around their time in the other care environment, which causes them anxiety. X and Y sense the weariness and agitation and distrust in both parents. They absorb a sense of restraint from both sides of their family. Because of their conduct thus far, it is my view that these parents are psychologically damaging their children. I am most concerned about X, who is older and more aware, while Y follows the lead of her older sister. X is presenting with a number of key markers for a child experiencing deep psychological unease - distress, manipulativeness, externalising behaviour, aggression, self-harm, and psychosomatic complaints. Her presentation is not a happy child who has been quarantined from the dysfunction between her family of origin, but rather a child who has been egregiously exposed to parental conflict. Both of these girls, though especially X, as a direct result of the conduct of these two parents in my view, now belong to a cohort of children who are at far greater risk for all manner of melodies that attend children of high conflict separation. By the way in which these parents have acted over the years, in addition to what appears to have been unhelpful contributions from the paternal extended family, there is, lamentably a bleak future ahead for these children. Unfortunately, I do not anticipate that anything foundational will change between Mr and Mrs Debona. As a single expert who specialises in complex Family Law proceedings, this is one of the more dysfunctional post-separation relationships between two parents that I have been involved with in almost two decades of working with families.
Parent-Child Relationships
31. There is no question that these two girls love their mother and their father. In isolation, to some significant degree, l believe that the children enjoy their time spent in both environments. I think that Mr Debona is a loving and invested father, who relishes in the time he has with his girls, undertaking all manner of fun activities and outings with them during the time they spend in his care. Similarly, these children obviously have a strong attachment to their mother, whom has been their primary care figure over the last four years or so, and whom they are most familiar.
32. Unfortunately, the positive aspects of the relationships these children have with each of their parents are overshadowed by the enduring parental conflict to which these children have been so gratuitously exposed. As noted previously, I am firmly of the view that these children pick up on subtle messages of restraint within both the maternal and paternal care environments. I suspect that X and Y feel very divided between their mother and their father. That their ability to enjoy a truly immersive relationship with each parent is encumbered by the fact that they are wary about talking about their life with their other parent, or alternatively, that they have to say things to impugn one parent to the other in order to curry favour. Therefore, in both instances, X and Y's relationship with each parent is confounded by the ambient circumstances in which these relationships exist, namely a backdrop of ill will, distrust, probing questions, and messages of restraint. Both Mr and Mrs Debona need to reflect on the way in which they speak to their children, or ask them about their time with the other, and what this is setting up for X and Y longer term in terms of their own interpersonal engagements as they get older. I am profoundly concerned about the personality formation and psychological adjustment of these two children given the tribalism that has surrounded much of their upbringing to date.
…
Time and Living Arrangements
41. Consistent with my previous reports about this family, it is my view that given these children's care history, age, and relationship with each parent, a 9/5 configuration very likely approximates the best type of fortnightly living arrangement for these little girls. Orders were made to this effect in 2018, and were, in essence, in place for almost 12 months. While I remain of the view that this type of configuration meets many of their developmental imperatives, the reality is that it has not been successful for Y and X. The chaos in their life has continued unabated over the course of 2019. X has become progressively more disturbed in her behaviour and emotional well-being. The transition between their mother and father's care continues to be fraught and unsettling for these girls. There has been ongoing police and Child Protective Services involvement, as well as involvement from ancillary agencies such as O Family Services. Because of the conduct of these parents, where there is fault on both sides in my view, what could have been a potentially fruitful living arrangement for the children in which they had significant time with both of their parents, has simply not worked.
42. Given the unfortunate reality of the situation, it is my view that these children should no longer live in a shared-care arrangement between their mother and father. They should live primarily with one parent, with a reduced reliance on (any semblance of) communication and cooperation between Mr and Mrs Debona. They have demonstrated consistently their inability to do so. Where these children should live, should be predicated on what the court ultimately determines has been the principal source of difficulties throughout 2019. Surely both parents have contributed in different ways, although fundamentally, the court should determine which parent is most likely to ensure that these children can grow up having some relationship with both sides of their family. Unfortunately, despite the fact that these children clearly love Mr Debona and relish in their time with him, available data suggests that these children are exposed to more manipulation and influence and potential (psychological) harm within the paternal environment, than is the case in the inverse. Although Mrs Debona has almost certainly asked the children about their time with their father, which is ill-advised, she has not made the persistent allegations of abuse that have occurred from the other direction. It is Mr Debona's fundamental incapacity to accept that the children are basically safe with their mother that means he has never felt settled with the children's care arrangements. Regrettably, I have formed the opinion that these children would be psychologically healthier with reduced exposure to the paternal environment, while concurrently having some opportunity to maintain a relationship with Mr Debona. Whether this means that the girls simply spend alternate weekends with their father, or whether there is a need for their time with him to be reduced to an even further degree, will ultimately become clearer upon the testing of the evidence.
43. In line with these opinions, there are several outcomes/recommendations submitted:
a. That, there is at least some argument that the children would be better served by one of their parents assuming sole responsibility for major decisions affecting their care and upbringing;
b. That, there is almost no likelihood of these parents ever being able to co- parenting in a functional manner, even with significant intervention;
c. That, the children are beginning to exhibit clear markers for emotional distress and psychological maladjustment, which in my view, is an artefact of the dysfunctional relationship between their parents;
d. That, it is important for X to continue to receive professional support around some of the issues outlined in this report;
e. That, there is limited evidence that these children are at an unacceptable risk in the care of their mother;
f. That, although a 9/5 fortnightly configuration would meet a number of these children's developmental imperatives, the last 18 months or so have demonstrated a furtherance of difficulty for these children;
g. That, these children would be best served by living primarily with one of their parents, reducing the need for transition, limiting exposure to competing environments, and lessening the emphasis on communication between the parties;
h. That, both parents have likely contributed to the problems that have existed over the years since separation, though it is my view that the paternal environment has been more undermining in the children capacity to live between two households…(emphasis added)
EVIDENCE AT TRIAL
The Court is reluctant to make an adverse credit finding in respect to a party’s credit in parenting proceedings.[1] However, in order to be able to determine this dispute over parenting orders for the children, where those who are otherwise responsible have asked the Court to makes decisions effecting those children, it is necessary to form an assessment of the character and the personality of the parties in this case.
[1] See Adamson & Adamson (2014) FLC 93-622 at 79, 703
At most, witnesses give evidence of their recollections which are always skewed by their perspective. I do not regard any witness in this case, whose evidence was tested in cross examination, to have given evidence dishonestly or with an intention to mislead.
However, in my view the parties’ recollection of past events has been tainted by their ongoing hostilities. Neither party has any trust in the other parent. This leads me to view much of their evidence with considerable caution.
The father’s presentation in the witness box was congruent with the observations made of him by the report writer. As a witness the father impressed as someone determined to get his own way (and admitted as much during the course of his evidence). The mother presented with an almost complete lack of emotional affect and impressed as someone completely cowered by the disputation with the father since separation.
Overall, whilst neither of the principal parties’ evidence could be accepted unequivocally, on all aspects, to the extent necessary to determine orders in the children’s best interests, I found the mother’s account of events and claims of concern about the father, his behaviour and the risk to the children (corroborated as they were by other documents and the evidence of the report writer), along with her concerns about the paternal grandmother (who was not called to give evidence) to be more reliable, taking into account the proper concessions she made, than those made by the father.
The father
The father adopted his affidavit filed 16 February 2021. The father gave evidence and was cross-examined. In his affidavit, the father set out the background to these proceedings and how distressed he was when the intervention order made in September 2019 suspended the final orders of 2018.
The father deposed to his “concerns” since the final orders were made, the progress of his time with the children and his belief that the children's level of distress was due to the limited amount of time they were spending with him. As well as setting out in his affidavit what he said were the children's complaints about the mother, the father deposed to what he said was the children's desire to spend more time with him. The father also deposed as to why he did not believe the restraint on the time the children spend with the paternal grandmother should continue.
In response to questions from Counsel for the mother, the father agreed that there had been a restraint agreed to in the interim orders in relation to the paternal family. He agreed that since the final orders in 2018, there had been multiple notifications to the Department about the children, some of which he had made and others which had been made by third parties.
The father agreed that after the parties separated and before the matter came before the Court for the first time in 2017, the children had been separated. The father said he had “in a moment of anger” said that he was keeping X and the mother could have Y.
The father agreed that there had been intervention orders between the parties as long ago as 2009 before they had separated and the Police initiated proceedings against him in August 2016. The father agreed that the Department had been involved with the children since 2016. The father said that he could not dispute that as long ago as 2019, the Department had recorded sixteen different reports in relation to the children. The father agreed that he had notified the Department about bruises he had noticed on the children but he had not asked the mother about how they had happened before doing so. The father agreed that as a result of the notifications to the Department, the Police had become involved with the children, who they interviewed and had subsequently found nothing of concern. The father agreed that as a result of this a case worker had been appointed, to work with both the mother and the father, by O Family Services. The father did not dispute the case workers were concerned about his behaviour and that of the paternal family during a home visit with them in 2019, and that he had done nothing to reassure the children when they were upset at the time. The father said that he did not agree with what was observed by the O Family Services case workers and that he did not believe that what they had expressed concern about amounted to emotional abuse.
The father denied that, amongst other things, he told the children that the mother broke the family, that she stinks, or that he coached the children. The father was asked about the paternal uncle, who was described in cross-examination as a fixture in the family since the parties married. The paternal uncle lives with him, but planned, he said, to move out with his new partner as they were expecting a child.
The father said that he had been employed for seventeen years and worked a regular shift with a rostered day off every second Monday. The father said that he believed he could negotiate flexible arrangements with his employer and that if he was required to drop off and collect the children he and the paternal uncle could share the responsibility.
The father was asked about why arrangements for telephone communication had been discharged by consent in October 2020. The father did not disagree that this had been done because the mother was concerned that the children were distressed as a result of time on the telephone with him. The father was then asked about an iPad that he had provided to X. The father was asked about text messages that he had sent the mother in 2017 and, again, in 2019. The father denied the allegation put to him that his negative views about the mother poisoned even the most mundane conversations between them about the children. As a result of answers given by the father in cross-examination, the parties were able to further narrow the disputed issues and come to an agreement on issues such as time spent on special occasions.
The father was asked about his counselling with Mr Q and why it had concluded. The father gave evidence that he had completed the Parenting After Separation course that was previously ordered.
The father was asked questions in cross-examination by Counsel for the Independent Children's Lawyer about the three family reports done by the report writer and the concerns about his behaviour set out therein along with the Department's finding that he had been responsible for emotionally harming the children. When questioned about the rationale for the time spent orders for the children he wanted, the father said that the reason for this was, “it's fair”. In re-examination when asked about his ability to negotiate flexible working arrangements, the father was taken to a letter annexed to his affidavit from his employer and said, “I'm the union rep. I usually get what I want”.
The paternal uncle
The paternal uncle gave evidence and was cross-examined. In his affidavit filed 15 February 2021, the paternal uncle deposed to his living arrangements and personal circumstances. The paternal uncle said that he had a very close warm and loving relationship with the children. He also deposed as to how he effected changeover and why he said it was difficult that the paternal grandmother could not spend more time with the children.
He gave evidence about his new relationship, the impending birth of his child, and (Walter Mitty like) the evolving nature of his plans to purchase property and move out with his new partner. The paternal uncle gave evidence that his partner had an issue with the Australian Tax Office. The paternal uncle said that this had not only led to them forfeiting a deposit of almost $100,000 on a property that they had purchased last year but was also delaying a decision on if and/or when he would move out of the Suburb L property that he shared with the father (which had been bought with financial help from their parents).
The paternal uncle was asked questions about some of the text messages he had sent to the eldest child, just two months after the final orders were made in 2018. The paternal uncle, who volunteered that he does most of the cooking at the Suburb L property, gave evidence that if he did move out with his new partner, the paternal grandmother would help out more.
The paternal uncle denied that the paternal grandmother would question or upset the children and since the restraint on the time that she could spend with the children had been in place, he said she did “tear up” but said that this was not in the presence of the children.
In response to questions from Counsel for the Independent Children's Lawyer, the paternal uncle said that he did believe the mother, “at times” hurt the children, but denied that he and the father negatively influenced the children. The paternal uncle agreed that it was, “possible” that the children picked up on verbal and non-verbal cues from both him and the father but denied that they were influencing them.
Finally, the paternal uncle said that if he stayed at the Suburb L property he would be able to continue to assist with changeovers.
The father’s counsellor
Mr Q, who had carried out six counselling sessions with the father, gave evidence and was cross-examined. He adopted his affidavit filed on 28 February 2020 (Exhibit A5). Mr Q's evidence was that the counselling was stopped as he felt he had gone as far as he could with the father, and the father had calmed down.
Mr Q agreed with the proposition put to him in cross-examination that if the father was pushed and under stress, he tended to default to a black and white approach to issues. He also gave evidence that since last seeing the father in February 2020 he had assumed that the father had been able to practice strategies to improve his ability to manage his emotional regulation.
The mother
The mother adopted her affidavit filed 2 March 2021, gave evidence and was cross-examined. In her affidavit, the mother deposed to the background and history of the relationship with the father.
The mother also deposed to her view of the parties' separation and the proceedings leading up to the final orders in 2018. The mother in her affidavit also set out her claims about the father's behaviour after those 2018 orders were made including a report she said that he had made to the Police and the Department.
The mother also deposed as to why she said she had sought an intervention order in September 2019 (which suspended the final orders of 2018) and the children's time with the father since these proceedings were commenced.
As well as responding to the father's affidavit, the mother deposed as to why she wanted to travel overseas but did not set out any plans or proposals for this or detail how (or when, given COVID restrictions) she wanted to do so or why, given this, it would be in the children's best interests.
In response to questions from Counsel for the father in cross-examination, the mother said that the application to the Victorian Magistrates Court in 2019 (which resulted in the suspension of the final orders) was made on advice from O Family Services because of concerns they had about the multitude of false accusations being made about the children and that they were being emotionally harmed as a result.
The mother acknowledged that notifications had been made by people other than the paternal family. The mother gave evidence that she told the children that they had to “love mum and dad no matter what” and maintained that she never said, “bad things” about the father in front of the children.
The mother was asked whether she thought the children grieved for the loss of time with the father when the orders were suspended, and time spent arrangements were changed. The mother's evidence was that rather than returning immediately to this Court O Family Services had thought an application to suspend the final orders in the Victorian Magistrates Court would be, “a better option”, as the father, “might take notice”.
The mother was asked questions by Counsel for the father about concerns that her client had that she smacked the children. The mother maintained that she did not and said instead that she practiced time out with the children, including the children being sent to their rooms for bad behaviour. The mother agreed with the proposition put to her that it was possible the children exaggerate and agreed that the children were acutely aware of her disputes with the father. In relation to the father's concerns about the bruises suffered by the children the mother said she did not think it was necessary to be proactive and tell the father if the girls got a bruise climbing trees or the like as they were “active kids”.
The mother gave evidence that after the Police had attended at her home and physically examined the children, this was the catalyst for O Family Services to recommend that she get the intervention order because of the constant emotional harm being done to the children due to the number of reports being made to the Department about them.
Whilst admitting that she had “jumped to the conclusion” that the father was responsible for all of the notifications to the Department, the mother's evidence in cross-examination, repeatedly, was to the effect that she believed the father, or his family was responsible for emotional harm to the children and were behind most of the notifications.
The mother was asked about the father being very “black and white” and said her view was that “his family influence him a lot”. Whilst admitting that “on occasions” it was possible the children were not telling the truth to either her or the father, the mother said that she was concerned the children were being harassed by the paternal grandmother asking questions of them to use against her and was critical of how the paternal grandmother upset the children.
In response to questions from Counsel for the father, the mother gave evidence of the challenging behaviour the girls present (particularly the eldest child) when they returned from time with the father. The mother's evidence was that this included being told by the children that she “broke the family”, and she “steals from the government”.
The difficulties caused because of this and in addressing the children's needs, including long-term issues as that term is defined in the Act, were graphically illustrated during the mother’s evidence. One example was a dispute between the parties over glasses for the eldest child to which it will be necessary to return presently. The mother’s evidence was also that when the children bring “stuff” from the father’s home, she was not allowed to “touch it” as they say to her “it’s daddy’s stuff”.
The mother was asked by Counsel for the father why, given what they had been able to agree on, she still sought orders for sole parental responsibility. The mother's evidence in reply made plain that the parties clearly could not communicate, let alone cooperate. She would find herself and the children back in the very same situation as they did after the final orders in 2018 with there being disagreements over issues such as seeing psychologists and the like; and the children suffering further emotional harm as a result of an inability of the parties to communicate, cooperate and attempt to come to a decision over issues so fundamental to the children's best interests.
The mother acknowledged, in response to questions from Counsel for the father, the children had said they wanted more time with the father. The mother's response, however, made plain that she believed the children were not as stressed or anxious when they were spending less time with the father. The mother's evidence was that she believed less time with the father would be better for the children as they would not be exposed to hearing negative things in the father's home (from his family) about her and they would be less stressed as a result.
In response to questions from Counsel for the Independent Children's Lawyer, the mother gave evidence about how she deals with poor behaviour by the children when they return from the father's. Amongst other things she would remove access to iPads or send them for time out in their rooms. The mother explained, in response to questions from Counsel for the Independent Children's Lawyer, why she believed the parties had been unable to make decisions together and this had been the case as long ago as 2017 (as recorded in the family report at that time).
While the mother accepted some blame, her evidence was that the parties had a very one-sided relationship where she got nothing but negative feedback from the father with no ability to discuss or be able to make decisions together for the children. The mother confirmed her proposal for time between the children and the father was about reducing the adverse impact on the children, of their exposure to her conflict with him and the cumulative emotional harm that they had suffered as a result.
The mother was asked questions by Counsel for the Independent Children's Lawyer about her proposal and the differences with those of the father, her relationship with her partner and the reasons for her concerns about the behaviour of the paternal grandmother.
In re-examination, the mother was taken to text messages she exchanged with the father about using an electronic communication system (My Mob) for separated parents that she had sent him. In that exchange the father said:
…
The father: Well I received nothing. I will not be accepting it on any case! I will also be seeking more time with the girls so you can come to an agreement or we can go through court.
….
The mother was also asked about difficulties created by the father's attitude and behaviour in relation to basic (but important) things for the children such as glasses. The father's response in the text messages between them about this was:
Sat, 20 Jul at 11:17am
The mother: I’m taking the girls to check the eyes I’ll let you know how they will go. X needs glasses
The father: Don’t choose any without me with her.
The mother: She’s choosing them now I’ll send u the pic
The father: I want to talk to her
The mother: *attaches picture message*
The mother: She likes this one
The father: Why did you hang up! What is your problem
The mother: She hang up
The father: I will get glasses for her. Ones she wants
The mother: She wants them. She loves the purple
The father: Don’t make up stuff I want to talk to her now.
The mother: she likes them she said that u said to her that u don’t like them. My insurance covered the whole glasses which is good.
…
Mon, 22 July at 3:39m
The mother: I picked up X and she’s upset that u mum told her that she’s going to take her to different doctor to check her eyes seriously
The father: Can you please stop crying with your bs and consistent lying.
The mother: X went to the doctor the doctor knows better start being civil X is so happy to get the glasses why make here upset
…
The father: Please stop sending me pointless texts with your bs!
…
The mother’s partner
In his affidavit filed 2 March 2021, the mother’s partner deposed to his background and the history of his relationship with the mother. The mother’s partner also deposed to his own family relationships and the arrangements for his children and the children the subject of these proceedings at their property in Town E. Given his evidence before the Court, I have no hesitancy in accepting his evidence that he does not overstep the boundaries as a step-parent. The mother’s partner was asked questions in cross-examination about how the children interact with his children when they spend time with him, how the mother disciplines the children and how they presented when they returned from spending time with the father.
The mother's partner's laconic and straight forward answers in cross-examination were redolent with the ring of veracity and I have no hesitation in accepting his evidence.
The mother’s psychologist
The mother also relied on the affidavit of Ms M filed on 5 August 2020. Ms M, who was the mother's psychologist, was not required for cross-examination. In her affidavit, Ms M deposed:
Ms Debona has independently sought formal treatment support when required. I do not consider that mandated intervention is necessary for Ms Debona. Should she find it beneficial, continuing to engage with psychological supports may well be useful, particularly to assist with managing the stress associated with her current situation.
As noted above, in the approximately 3 years that I have had interaction with her, Ms Debona has consistently presented as a committed and supportive parent with a sound awareness of her children’s needs. Given that, I do not consider that ‘standard’ parenting classes are relevant for Ms Debona. However, it is my understanding that X presents with substantial trauma markers and Y may also require support. Ms Debona may therefore find it useful to obtain parenting support from a trauma-informed professional, either through group classes or in individual parenting sessions.
Although it is not unusual to recommend participation in programs aimed at facilitating a coparenting relationship, it is my understanding that co-parenting is not possible for Mr and Ms Debona. It is my understanding that relevant assessing bodies have formally stated that a coparenting relationship is not achievable for Mr and Ms Debona. However, I note that I have not had access to any documents on this matter to verify this. With the information available to me at the time of this report, Ms Debona’s participation in a program designed to facilitate a co-parenting relationship does not appear to be useful. However, a decision about how Mr and Ms Debona can effectively navigate parenting requirements for X and Y is needed. Limiting exchanges to emails or text messages may assist in navigating this issue, although an assessment of the best approach in this matter would likely be useful.
Any other relevant matters Ms Debona reports that X and Y having supervised visits with Mr Debona appears to be useful in maintaining their relationship with him. I note that X has reportedly indicated concern about removing supervision requirements from visits with Mr Debona. I note the concerns raised in Dr K’s report pertaining to the likelihood of ongoing animus and aggressive confrontation from Mr Debona towards Ms Debona, potentially in the presence of their children. I note concerns raised about Mr Debona’s emotional response to Ms Debona and the likely negative impact of this on X and Y. Accordingly, I would respectfully suggest that a review of the parties assessed by Dr K be undertaken to assist with determining future visitation and/or living arrangements.
The report writer
The report writer was called to give evidence and was cross-examined. The report writer adopted as true and correct each of the reports that he had previously prepared including the (most recent updated) Report. The report writer indicated that he had read the trial material which the parties had filed and was aware of the matters that had been agreed on and their respective proposals in relation to the matters that were still in dispute.
The report writer was asked questions by Counsel for the Independent Children's Lawyer (in the context of the parties’ respective proposals on the children’s time with the father each fortnight). The report writer's evidence was:
… in terms of my clinical formulation about this family and these two little girls, the overriding concern for me at each point that I have seen them is that these children do not impress as children who are thriving in the arrangements that they have been living in. And I have seen several versions of the arrangements and consistently, these children appear to me to be struggling psychologically with living between their mother and their father. And my opinion has been that they feel some level of pressure within the paternal environment and that that provides them with a sense of burden. And in my most recent report from 2020, I expressed the view that these children present as encumbered and that they’re really struggling with living across both households.
…
…because of what I believe is a level of burden and lack of emotional permission within the paternal environment to have a fulfilling relationship with both of their parents.
…And so I think that the threshold question for the court is really around how do we ensure that these girls can have time with their dad, but they don’t have all of the emotional burden of his difficulties in accepting the end of the relationship and his difficulties with the children’s mother and difficulties from members of the paternal family around quarantining these girls from any ill will or animus and enmity that remains towards – towards the children’s mother.[2]
[2]Transcript dated 23 March 2021, pg 6, line 39 to pg.7, line 20
When asked to comment on the parties respective proposal for holiday time, the report writer's evidence was:
… we’re getting to this issue of the cumulative challenges for these girls when they’re with their dad. And it’s consistently – and I will restate this point. I am of the view that these children do not have the emotional permission to have a relationship with both of their parents while they’re in the paternal environment. And whether that emanates from Mr Debona himself, whether that’s the paternal uncle, whether that’s the paternal grandmother, there is unquestionably a negative view of these children’s mother when they’re with their dad.
…
Getting back to the question of, you know, time during school holidays. What I would simply put to his Honour and the court is around, well, how do we ensure that these girls can have time with their mum and their dad but to a degree that doesn’t – that isn’t a furtherance of the type of distress that they have incurred already when they have lived between their mum and their dad. What we don’t want to do is set up a situation in which we’re continuing to add to this cumulative distress that these girls have already encountered to this point. [3]
[3]Transcript dated 23 March 2021, pg 8, lines 6 to 23
Counsel for the Independent Children's Lawyer asked the report writer, given the views of the children referred to in the report, what the Court should make of the “wishes” of the children. The report writer's evidence was:
My recommendation to the honourable Court would be that the express wishes of these children should be incidental to and not determinative of what the court ultimately concludes. I mean, X, she will be turning 10 this year. Y is currently 7; she will be 8 later this year. So, I mean, these children don’t have the – you know, the requisite maturity to be able to have a definitive opinion about, you know, they’re final living arrangements. I – whilst it’s important to listen to what they say, their views should not be determinative.
When asked questions about the parents being able to work cooperatively, the report writer's evidence was:
There’s nothing about the behaviour of these parents that suggests that that’s necessarily sincere, particularly, I would add, in the case of the – in – in the case of the applicant father. So I – I’m not convinced that these will ever be parents that go to parent-teacher interviews together or hold joint birthday parties together or are able to stand together on the side of – on the sideline of sports matches and watch – watch their girls, you know, thrive and enjoy their sport and feel that things are – you know, that their mum and dad are generally on the same page. That’s just not going to happen. And that has implications when we look at issues like shared care and parental responsibility because, you know, how are these parents going to be able to sit down and discuss in an immersive, you know, collaborative way, substantive issues relating to X and Y? Issues like their travel, their activities, where they go to school, whether they get the COVID vaccination when it’s available for children, whether they need braces, whether they should see the school psychologist. All of these sorts of things. I just can’t envisage a scenario where that actually happens.
…
I would express the view that the likelihood of decisions affecting these girls to be delayed or compromised or abandoned is significant. The likelihood that they would miss out on being enrolled in, you know, the local sports club or being able to attend some school camp or something like this because there has been issues with both parents consenting or signing the form or, you know, all of those sorts of practical things – the likelihood of that, I think, is substantial in this case.
…
[I]f the respondent mother were to assume sole parental responsibility as it pertains to decisions for the children’s education and medical needs, I suspect that Mr Debona would be quite aggrieved by that. I think that that would sit entirely uneasy with him. But I also think that, in some respects we’re picking the least worst option here. No one wants to see a situation where a parent is excluded from having input to a decision involving their kids, but I guess my position would be, well, the alternative is that X and Y actually suffer because the level of disturbance between these parents is so significant that it’s just not going to work, in my view, and these girls are going to be – they will be seriously affected because their mum and dad won’t be able to agree on, you know, whether they get braces or not.[4] (emphasis added)
…
[4] Transcript dated 23 March 2021, pg 14, line 19 to pg. 16, line 36
Elaborating on this issue and when asked if orders could be devised to facilitate the parties exercising equal shared parental responsibility the report writer said:
Realistically, though, in three years’ time when the respectively legal representatives aren’t involved and there’s not the scrutiny and imprimatur of the court operating in the background, I just see failure points all over the map. I just – realistically, having consulted with this family over several years,
I’m just not imbued with any sense of confidence that, in situ, without all of those other influences, that things are going to be implemented in the interests of these children. I just see failure points all over the map...[5] (emphasis added)
[5] Transcript dated 23 March 2021, pg 16, line 44, pg 17 line 4
Given the evidence of the report writer before the Court it is timely to recall that it was noted in Albert & Plowman [2020] FamCAFC 23:
…
19.Single experts, either by court appointment or consensual engagement by the parties, are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the Court which is relevant to the determination of the issues in dispute. But they are just witnesses. Their expert opinion evidence is not necessarily decisive of the dispute. Judicial power to decide the legal dispute rests in the hands of the trial judge, not the expert witness.
20.Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict.
21.As was observed in this jurisdiction long ago (see Hall and Hall (1979) FLC 90-713 at 78,819):
… There is no magic in a [single expert report]. A Judge is not bound to accept it and there should never be any suggestion that the [expert] is usurping the role of the court or that the Judge is abdicating his responsibilities…
…
While the [single expert]’s views will normally have weight with the court because of his expertise and experience, the [expert] does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the [single expert]…
(References omitted)
22.Those observations have been successively endorsed by the Full Court (see Carpenter & Lunn (2008) FLC 93-377 at [226]-[227]; Friscioni & Friscioni [2010] FamCAFC 108 at [96]-[97]; Bostoi & Bostoi [2011] FamCAFC 132 at [40]-[44]; Whipp & Richards (2012) 257 FLR 395 at [101]), but more importantly by the High Court of Australia, which confirmed a court hearing a dispute under Part VII of the Act is not bound to accept or reject the whole or any part of the evidence given by an expert witness (U v U (2002) 211 CLR 238 at 261).
The Court bears in mind what the authorities have had to say about the weight the Court can, and should place, on any recommendations such as those made by the report writer in this case. Each of the parties in this matter had an opportunity to cross-examine the report writer. It is for the Court to decide what is in the children’s best interests. In doing so, it is necessary to bear in mind the evidence of the report writer which includes giving appropriate weight to his evidence and his recommendations. I have no reason on the material before the Court not to accept the evidence of the report writer and the recommendations that he made.
ORDERS SOUGHT
Each of the parties sought different final orders on the remaining issues in dispute. Those areas in dispute were chronicled by the Independent Children’s Lawyer and reduced to a minute which was marked as Exhibit ICL2. The broad details of each of those proposals is set out at Annexure B to these reasons.
FINAL POSITIONS
At the conclusion of the evidence, the issues (or at least the positions of the parties as conveyed by their Counsel in final submissions) had changed again. In the context of the remaining issues in dispute, Counsel for the mother told the Court that her client instructed her to pursue orders on those issues as contained in Exhibit ICL2.
However, that position was further refined in those submissions so that it was submitted any fortnightly time should be in a block arrangement, holiday time should be for a maximum of four days, each party should purchase an iPad for the children to use in their respective homes, and it was acknowledged that any restraint as sought (against the paternal grandmother) was probably not enforceable. It was submitted that given this the case (and having regard to the evidence of the report writer) this was a further reason why the time the children spend with the father should be limited.
Counsel for the father submitted that whilst her client's “preference” was for the orders in Exhibit ICL2, he had heard the report writer's evidence particularly about the tolerance of the children for time with him. It was submitted, notwithstanding what was in Exhibit ICL2, that this time should be in a block arrangement. It was also submitted that this should also be the case for holiday time. Further, and despite what may have been implied from the position he would take opposing the orders permitting travel, it was submitted that he did not oppose the mother having that ability to travel with the children per se. Rather, it was submitted that he simply sought the same ability and would sign any passport application sought by the mother.
Counsel for the father submitted that there should be no order in relation to telephone communication, the orders should be silent on this and her client would agree to purchase iPads for the children to use (and keep at his home) as the mother would and should at her home.
It was also submitted that her client had heard the evidence about the need for him to manage his family better and he would take that on board. However, it was submitted that it was artificial to impose any restraint on the time the paternal grandmother was in his home with the children and doing so, would simply perpetuate a dispute and cause distress to the children.
Finally, it was submitted that the father would “prefer” an order for equal shared parental responsibility. However, if on the evidence, the Court found this was not in the children's best interests given what the parties had been able to agree on (and as there was what was described as a “continuum” of options on the issue of parental responsibility). It was submitted that the Court should, in that case, opt for a “carve out” option as this would send an important message to the children.
The Independent Children's Lawyer took the position, in final submissions, that there should be an order for the mother to have sole parental responsibility (with the requirement to provide prior notice to the father of the decisions she intended to make), time with the father should be for four nights a fortnight (but not in a block), there should be individual iPads for the children in each home but otherwise no orders for telephone communication, holidays should be for no more than four nights in school term and five nights in long summer holidays. The Independent Children's Lawyer supported the mother's proposal in relation to passports.
APPROACH TO PARENTING ORDERS
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
1. The objects of this Part are to ensure that the best 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;…
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the specific criteria which must be considered in determining what is in a child's best interest.
Section 61C of the Act provides to the effect that each of a child's parents has parental responsibility for the child until such time as the child obtains the age of eighteen years, unless the Court makes an order which alters that responsibility.
Often it is said that past behaviour is a good predictor of future behaviour. In my view the past behaviour of both parents, which at times can be criticised for their lack of respect and trust for the other parent is not a good predictor of their capability for future improved behaviour by them (for the children's sake) in this case.
The conclusion arrived at on the evidence is that father has prioritised his own need to pursue conflict (to get his own way) and what he sees as his own rights above his responsibilities as a parent.
Any family violence involving the children or a member of the children’s family.
I have referred to this issue earlier when considering the background to the proceedings and the requirements of s.60CC(2)(b).
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;
There have been historical intervention orders. The interim intervention orders that were made before the current proceedings were commenced, were made in the context of what the mother said was the father’s constant accusations and relentless harassment.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings.
This dispute over parenting orders between the parties have been on foot since 2017. Having regard to that history, I am satisfied that the time has come to bring an end to the litigation to prevent further emotional and/or psychological harm being done to these children.
Any other fact or circumstance that the court thinks is relevant.
As a result of the wide areas of disagreement between the parties in the past, it is important for orders to be made as clear as possible in order to eliminate potential grey areas which would only be likely to foment disagreement in the future.
There is no better example as to why this is necessary than the father’s response to the mother’s plea (via text message) that they work together on addressing the girl’s eating habits:
The father: ….You just worry about you! I’ll worry about me!
The mother: It doesn’t work that way Mr Debona we need to do stuff the same with the girls. I just hope one day we will its for the girls.
The father: …Leave me the hell alone. Unless it is an absolutely emergency text me if not email will be fine. Stop annoying me with your lies and crap!
PARENTAL RESPONSIBILITY
The first matter to be determined is the question of allocation of parental responsibility. The mother and the Independent Children’s Lawyer both seek orders that the mother have sole parental responsibility for the children. The father seeks an order that he and the mother have equal shared parental responsibility for the children.
In Beard & McCarthy [2009] FamCA 737 Cronin J said at paragraph [87]:
The emphasis on Part VII of the Act is on parents working out these decisions in a consultative way because they know best their children’s needs and how to best promote their development. A court should be reluctant to intervene unless the parents or either of them, lose sight of the focus on those developmental needs. A parent in that case might be more concerned with their own needs including a desire to continue the battle.
Counsel for the mother submitted that an order for her client to have sole parental responsibility was “absolutely supported by the evidence of [the report writer]” and that it was not in the children’s best interests for the presumption pursuant to s.61DA of the Act to be applied. It was submitted that given the evidence before the Court this case is analogous to the matters addressed in Penski & Kocher [2013] FamCA 255 at paragraphs [71] to [72].
At paragraphs [28] and [29] of the Report it was said:
…[t]hese parents have consolidated beliefs about one another which are likely unamenable to any intervention. I would add that Mr Debona continues to present as angry and aggrieved about the situation in which he finds himself, much of which he attributes to the conduct of the respondent mother. It is questionable whether he truly accepts the breakdown of the marriage, even now, years later. He tends to present as obstinate and belligerent in relation to arrangements for these girls.
…there is now a far more compelling argument for sole parental responsibility. There is now provable, unambiguous evidence these parents cannot work together in any functional way. Indeed, their very proximity causes their children palpable distress. …
…Given X and Y's ages, there are still many further decision points around which the parties may come to disagree, including professional interventions, medical and dental issues, travel, extracurricular pursuits, and school requirements. There is also a complete paucity of functional exchanges between these parents in relation to the day-to-day needs of their daughters, with X and Y effectively having to act as a conduit between their mother and father, amplifying their burden. …
The report writer’s evidence before the Court on this issue (referred to at paragraphs [85] and [86] above) was arguably even more definitive.
As the Full Court made clear in Dundas & Blake [2013] FamCAFC 133; (2013) FLC 90-552 at [61] the application of the presumption is mandatory, unless the evidence satisfies the Court that it is not in the best interests of the child(ren), and there must be explicit and cogent reasons why the presumption should be rebutted. More recently, Kent J, sitting as the Full Court, in Vallans & Vallans [2019] FamCAFC 260 expressed the view as [38]:
There cannot be any doubt that the legislative intent is that the statutory presumption is of central importance. The corollary of that is there must be convincing proof as to the children’s best interests for s.61DA(4) to be activated to rebut the presumption.
The cumulative effect on the children of the parental conflict, coupled with the demonstrated inability of the parties to co-parent and the evidence of the impact of this on the children to date demonstrates that equal shared parental responsibility is contraindicated. The evidence supports a finding that the children have been deeply affected by the conflict between their parents and the parents have not been able to discharge their obligations.
It is an understatement to say that the parties in this matter have a poor relationship. The children have been in the primary care of the mother for the majority of the time since 2017. It is the mother’s case that she has been and will continue to be destabilised and unable to ensure decisions on long term issues for the children are made if the father is to be involved. There is an objectively sound basis for that decision and definitive support from the report writer in his evidence before the Court.
In this case, the evidence is that there is no civil relationship between the parties, no effective communication, no good will, no evidence that their parenting styles are similar, and no evidence they have a commitment to such an arrangement. The evidence is that their relationship is characterised by mistrust, suspicion and an inability to communicate, let alone negotiate.
In addition to the matters set out above the matters raised under s.60CC(2)(b) and s60CC(3)(b),(f), (g) and (i) provide a principled basis to rebut the presumption under s.61DA(4). It is also for those reasons not in the children’s best interests for the parties to have equal shared parental responsibility.
It would not be in the best interests of either child for there to be continuing conflict over a long term issue and no way of resolving it. Notwithstanding that they were, with the assistance of Counsel, able to agree on some issues, I am satisfied that it would be contrary to the children's best interests were there to be an order for equal shared parental responsibility (pursuant to s.61DA(4) of the Act).[14]
[14] See Vallans & Vallans [2019] FamCAFC 260
Accordingly, in the circumstances I am satisfied that the mother should have sole parental responsibility in relation to the children. I am satisfied that the children's best interests are served by the mother having sole parental responsibility to enable her to make all necessary decisions on long terms issues (where these are not otherwise the subject of the proposed consent orders) regarding the children's long-term care, welfare and development after providing notice to the father of those and observing the process contended for by the Independent Children's Lawyer.
LIVE WITH AND TIME SPENT ARRANGEMENTS
Given the finding made in relation to parental responsibility, the requirement to consider equal time or to substantial and significant time, pursuant to the provisions of s.65DAA, is not triggered[15] and the Court should then make parenting orders consistent with the findings made in relation to section 60CC, having regard to s.60CA and s.60B of the Act.
[15]See Heath & Hemming (No. 2) (2011) FamCA 749
These parents have been involved in conflict and litigation since shortly after their separation. It has been relentless and the children have been traumatised by it.
For any shared parenting arrangements to work it is important for the parents to communicate regularly and in a timely manner about issues pertaining to the children and that they do so in a civil and respectful manner without exposing the children to conflict or involving them in adult issues: see also the decision of Tree J in Johns & Jasapas [2016] FamCA 471 and what His Honour said at paragraphs [134] to [136]. On the material before the Court it is not possible to find that will happen.
In this case, arrangements that provide the children with a greater certainty and a reduction in this exposure to the toxic environment in the paternal family are more likely to promote their best interests. Orders that provide for the children to live with the mother, and spend regular time with the father whilst limiting their exposure to the undue and negative influence of the paternal family are, on all the evidence before the Court, more likely to be in the children’s best interests.
The father had sought that the children spend five nights per fortnight with him in a 4/1 configuration. The mother had sought that they spend one overnight each alternate fortnight with him. As the submissions set out above make clear, at the end of the evidence of the report writer Counsel for both the mother and the father changed their positions again. They submitted that the time the children spend with the father should be in a block arrangement. I agree.
The report writer’s evidence before the Court was that it is “important to contain and minimise”, “the pernicious influence within the paternal environment” and that the children would “adjust”.[16]
[16] Transcript dated 23 March 2021, pg. 56, lines 18-25
The Independent Children’s Lawyer’s position on splitting the time as conveyed to the Court by her Counsel was not supported by either parent. I am cognisant that the Independent Children’s Lawyer was not physically present at the Court during the trial. Her position in terms of the amount of time, suffered from flaws that it did not seem to factor in the concerns of the report writer in his evidence before the Court about “working in the margins”[17] and on the evidence about the father’s availability would not be reasonably practicable.
[17] Transcript dated 23 March 2021, pg. 56, lines 34-35
On the evidence heard, it would be in the children’s best interests and reasonably practicable for the children to live with the mother and spend time with the father each alternate week from Friday after school to Monday before school. Given “the level of burden and lack of emotional permission within the paternal environment to have a fulfilling relationship with both of their parents”[18] the time in the fathers’ home, as set out above, is more likely to be in the children’s best interests and reasonable practicable.
[18] Transcript dated 23 March 2021, pg. 7, lines 5-6
In relation to school holiday time and again given the evidence of the report writer the time should be in a block and for no more than four nights with the fortnightly cycle when it falls during that time to be extended to Tuesday[19]. There will be no orders for telephone communication during time with the other parent and each parent will be required to purchase an iPad for the children to use in their respective homes.
[19] Transcript dated 23 March 2021, pg. 59, lines 31-47
Like the report writer, for the reasons set out above:
Regrettably, I have formed the opinion that these children would be psychologically healthier with reduced exposure to the paternal environment, while concurrently having some opportunity to maintain a relationship with [the father].
RESTRAINT ON THE PATERNAL GRANDMOTHER
The Report noted, at paragraph [39] that:
[t]here does appear to be a set of circumstances in the paternal environment that fosters and amplifies these children's sense of dislocation and unease and confusion. This is a theme that has been present during all of the assessments of this family to date, and there seems no hope in sight of any significant amelioration.…
The report writer was asked about the efficacy, in the long term, of a restraint limiting the time the children spend in the presence of the paternal grandmother. His evidence about this was circumspect. Notwithstanding this, the mother pressed, in final submissions, for such an order on a final basis. This was consistent with the pitiless approach she took to the father and the paternal grandmother throughout the proceedings.
Generally it can be said that grandparents usually give children what they need in abundance, unconditional love and ice cream. Unfortunately, in this case, from the paternal side of the equation at least, the children also get an unhealthy negative views of the mother and overwhelming sense of guilt which they are unable to understand and should not have to deal with.
The report writer was extremely concerned about what occurs in the paternal family environment where the presence and the behaviour of the father, the paternal uncle and the paternal grandmother creates a situation that is “more challenging and more emotionally taxing”[20] for, and which has placed the “greatest psychological load”[21] on, the children.
[20] Transcript dated 23 March 2021, pg. 34, line 40
[21] Transcript dated 23 March 2021, pg. 10, line 10
However, I agree with the submissions made in closing that making a restraint in the terms sought on the paternal grandmother a final basis would create “something abnormal” from the point of view of the children. Having regard to the conclusions arrived at, it is not appropriate to impose such a restraint.
Counsel for the mother submitted that if the Court was reluctant to make such an order, and the evidence was the children would be likely to be increasingly exposed to the paternal grandmother when spending time with the father this was another consideration that told in favour of limited time for the children with the father. I agree and (as set out above) this has been taken into account when determining the children’s time with the father.
OVERSEAS TRAVEL AND PASSPORTS
In Kuebler & Kuebler (1978) FLC 90-434 the Full Court set out a number of factors that are relevant to an application for children to travel overseas including the length of the stay, the genuineness of the application, the effect on the children of any interference or interruption with orders for the time between children and other parties and the extent to which the Court can be satisfied that the children can be returned to the jurisdiction together with any threat to the welfare of the children in terms of the proposed destination.
The decision of Withers v Russell & Anor [2016] FamCA 793 dealt with a matter, like this, where it was found an order for sole parental responsibility did not resolve the issue of passports given the relevant provisions of the Australian Passports Act2005 (Cth). This decision was discussed in Mosman & Taylor Mosman [2018] FamCA 842 at paragraphs [19] to [22].
While both parties have family overseas and the mother told the Court that she had not seen her family since 2015 it would appear that this issue was treated by them, when preparing their evidence for trial, as a third order issue.
This conclusion is open because of the dearth of evidence from the parties about it. There appeared to be little attention paid by the parties and their solicitors (to the evidence necessary as a matter of practical reality) to being satisfied it was appropriate to make such an order given the challenges arising from the COVID-19 pandemic. There was no evidence about matters such as who, when, why, how and where they would travel. In any event, no orders the Court could make would override the laws of Australia as to border restrictions. There was no evidence as to impact of those and what each of the parties said they wanted on these issues. In a sense, given the sad reality for the whole of the Australian community is that the state of border restrictions is a moving feast that is explicable.
However, given the state of the evidence and that the Court cannot predict with any certainty what and for how long there may be restrictions, what the costs of international travel will be let alone what the availability of flights would be it is not appropriate to make orders permitting the children to leave Australia until there are purchased return flights booked and adequate evidence from the parties on their respective proposals in relation to those issues.
While this may be disappointing and lead to (and that is as high as it can be put at this stage given the uncertainty created by COVID-19), the parties returning to Court on this issue given the matters referred to above that is the unfortunate conclusion arrived at.
Whilst Counsel for the father said her client would sign any passport application made by the mother I am disinclined to accept that he will follow through on that assertion. Moreover, the mother opposed the father’s orders for him to be able to travel overseas with the children. Given the difficulties referred to above, it was accepted by Counsel for the mother (and not cavilled with by Counsel for the father) that the issue of passports (if the father does not honour the instructions that he gave Counsel on the final day of the trial) and overseas travel could be addressed by a specific issues application (at some point in the future (subject to the vagaries of the progress in recovery from the pandemic)) and this would not otherwise derogate from the position that final orders would otherwise be made at the end of these proceedings.
CONCLUSION
In conclusion, the sad details traversed above set out the reasons why the orders at the beginning of these reasons are, I am satisfied it is in the children’s best interests. The evidence of both parties left a perception that they were locked in a battle over their rights as parents. They both require a reminder in the strongest possible terms that the legislative intent of Part VII of the Act is to focus on the “rights of children, on the one hand, and [the] duties, obligations and responsibilities as parents on the other”.[22] However, given the evidence heard at the trial, it is improbable that the manifest sense of those observations will be understood. I remain circumspect that despite having been through the ordeal of the trial the parents, particularly the father, will change the way they behave.
[22] As per Kent J sitting as the Full Court in Vallans & Vallans [2019] FamCAFC 260 following Blaze & Anor & Grady & Anor [2015] FamCA 1064
I certify that the preceding one hundred and ninety-two (192) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan.
Associate:
Dated: 12 May 2021
APPENDIX A: LIMITED CONSENT ORDERS
THE COURT ORDERS BY CONSENT:
1.All extant parenting Orders be discharged save that the appointment of the Independent Children’s Lawyer be discharged thirty (30) days after the date of judgment in this matter.
2.The parents ensure the children X born in 2011 and Y born in 2013 (‘the Children’) continue to attend V School until the completion of Grade 6 for each child.
3.The children live with the Mother.
4.Upon each of the children being eligible for enrolment in Secondary School, the parents shall enrol the children in B School (commencing in the Suburb C Campus) with each parent equally responsible for the school fees for the children.
5.All changeovers that do not occur at the children’s school shall occur at KFC Suburb D Shopping Centre and each parent may nominate a family member or friend to assist with changeover if either parent is not able to attend; and both parents shall ensure that no more than one person each attend changeovers for the children.
6.Each parent is restrained by injunction from:
(a)denigrating the other parent or extended family members in the presence or hearing of the child/ren and use their best endeavours to prevent any third party from so denigrating and remove the child/ren from any situation whereby a third party attempts to denigrate the other parent or extended family members;
(b)discussing any details of these proceedings with the child/ren or allowing any other third party to do so.
7.Both parents forthwith enrol in and complete the Tuning into Teens Program or similar program as approved by the ICL and provide proof of enrolment and completion to the other parent’s solicitors within 24 hours of obtaining a certificate of completion.
8.Both parents keep each other informed of:
(a)any significant injuries or illness that the child/ren suffers whilst in their care, as soon as practicable, following such injury or illness;
(b)any instances where the child/ren need(s) urgent medical attention during their time with the child/ren, immediately if possible, or otherwise as soon as practicable thereafter;
(c)any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in cases of emergency (with the parent in whose care the child/ren are in to inform the other parent immediately), with each parent permitted to visit the child/ren in hospital irrespective as to with whom the child/ren are staying at the time of such hospitalisation; and
(d)any general medical or health issues relating to the child/ren, including but not limited to particulars of any medication prescribed to the child/ren and names and contact details of the prescribing health practitioner and such medication must be provided to the other parent via text or email, if applicable.
9.Both parties authorise the general medical practices at which the children attend when in their respective care, to obtain from and exchange with each other any information they may require.
10.The parents ensure that, save for emergencies, for the purposes of any dental or orthodontic treatment for either child, the children are taken to the Town E Dental Surgery at F Street, Town E.
11.The parents ensure that Y continues to attend upon Mr G, psychologist, and that X continues to attend upon Ms H, psychologist, at J Psychology.
12.The parties communicate by text message and email about the care welfare and development of the children, save for the case of a serious medical emergency when such communication may be telephone.
13.The parents do all such acts and things necessary to keep the other informed at all times of and any changes to (within 48 hours of any change):
(a)their residential and postal address; and
(b)their mobile telephone numbers and email address.
14.Each of the parents are authorised to receive copies of all school reports, school photograph order forms and school related documentation normally sent to parents (at their own expense) and attend all parent teacher interviews, extracurricular activities including concerts, plays, sporting events and the like, normally attended by parents.
15.The mother be at liberty to provide the children’s treating health practitioners and psychologists with a copy of the reports of Dr K and any final orders made in these proceedings.
16.The mother be at liberty to produce to the Magistrates’ Court of Victoria, Victoria Police, the Department of Families, Fairness and Housing copies of these final orders and any reasons.
17.Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
18.That pursuant to section 68P of the Family Law Act 1975, to the extent that any parenting arrangements that are specified in these Orders are inconsistent with the current terms of any existing Intervention Orders these Orders take precedence over the existing Intervention Order with Case Number ....
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.
APPENDIX B: SUMMARY OF PARAMETERS OF DISPUTE
1.Parental Responsibility
- Father: equal shared
- Mother: sole
- ICL: Sole to the Mother with notice to be provided
2.Fortnightly time
- Father: five nights in a 4/1 configuration Thurs to Mon and every alternate Thursday night from school to school
- Mother: Each alternate weekend 10am Saturday to 5pm Sunday
- ICL: 10/4 arrangement where Father has Friday after school to Monday morning one week and Thursday night after school to Friday before school
3.Telephone communication
- Mother says no orders
- Father says “regular telephone contact”
- ICL supports individual tablets – no need for Orders otherwise
4.Holiday time
- Father:
o half of all holidays
o each party to be able to travel overseas with children for up to 3 weeks
- Mother:
o Father’s fortnightly cycle of time extended to the Tuesday at 5pm during all holidays.
o A carve out for mother only for overseas travel with a duration of not more than 28 days in a block every second year (no more than ten of those to be school days) – for example, to travel to Country N with the children during the Country N summer.
- ICL:
o 4 nights in a block for school term holidays excluding Summer
o 5 nights every 2 weeks during Summer holidays
Mother’s Day, Father’s Day
- Father: commence each at 5pm Saturday until school on Monday.
- Mother: 10am to 5pm Sunday (as per previous final orders).
- ICL: no strong view
Christmas
- Father: commence at 10am Christmas Eve to 3pm Christmas Day and 3pm Christmas Day continue until 6pm Boxing Day
- Mother: commence at 3pm Christmas Eve to 3pm Christmas Day and 3pm Christmas Day continue until 3pm Boxing Day (as per previous final orders).-
ICL: no strong view
Birthdays
- Father: school to 7.30pm or weekend 12 noon to 5pm
- Mother: 4pm to 7pm school days; or weekends 10am to 1pm (as per previous final orders).
- ICL: no strong view5.Passports
- Mother seeks to obtain passport and leave to apply to passports office without the father’s signature if father fails to sign.
- Father seeks that either parent may obtain passports and passports office without the other’s signature if either fails to sign.
- ICL supports the Mother’s proposal
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