DEMETRIOU & DEMETRIOU
[2020] FamCA 24
•23 January 2020
FAMILY COURT OF AUSTRALIA
| DEMETRIOU & DEMETRIOU | [2020] FamCA 24 |
| FAMILY LAW – CHILDREN – where the parties were able to agree on most of the parenting issues on the second day of the trial – consent orders made – discrete parenting issues to be determined – parental responsibility in relation to the youngest child – where allocation of sole parental responsibility for health to the father – time spent with the mother– where the mother self-medicated the children – assessment of risk – mother’s mental health – mother ordered to continue therapy. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAB, 65DAC, 97, 117 |
| A v A (1998) FLC 92-800 MRR v GR (2010) 240 CLR 461 R and R (Children’s Wishes) (2000) FLC 93–000 |
| APPLICANT: | Mr Demetriou |
| RESPONDENT: | Ms A Demetriou |
| INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Lawyers |
| FILE NUMBER: | SYC | 2580 | of | 2017 |
| DATE DELIVERED: | 23 January 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 2 – 6 September 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton SC |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lethbridge SC |
| SOLICITOR FOR THE RESPONDENT: | Rowlandson & Co Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Scarlett |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Lawyers |
Orders
That these orders shall prevail over any prior parenting Orders in respect of the children CC born … 2005 and DD, born … 2007, to the extent such orders are inconsistent with these orders.
Parental Responsibility for DD
That the father have sole parental responsibility for DD with respect to decisions about his health, provided that the father shall consult with the mother about decisions to be made in the exercise of his sole parental responsibility as follows:
(a) That the father will advise the mother in writing of the decision to be made and all related information;
(b) Within fourteen (14) days the mother will respond to the father in writing, providing her views and input which the father will genuinely consider; and
(c) The father will make the decision and provide the mother advice in writing of the decision and the reasoning behind his decision.
In all other respects the parties are to have equal shared parental responsibility for the child DD.
DD’s Time with the Mother
That the child DD is to spend time with the mother during the school term:
(a) as agreed between the parties but in default of agreement each alternate weekend from 5:30 pm Friday until 5:30 pm on Sunday or until 5:30 pm on Monday if the Monday is a public holiday;
(b) upon the child DD attaining the age of 16 years, his time spent with the mother in accordance with this order shall be subject to his wishes.
Orders Affecting all Children
The mother is restrained from submitting CC, DD, AA born … 2002, and BB born … 2002 (“the children”) or any of them to any psychiatric, psychological or related medical examination, other than in an emergency, without the written consent of the father and with the referral of the children’s General Practitioner.
The parties shall comply with any treatment plan or guidelines recommended by the children’s treating medical practitioners or other therapists, including but not limited to provision of medication.
Without admissions the parties are restrained from causing the children or any of them to be brought into the presence of Ms FF.
Counselling and Psychological Treatment
That the child CC engage in therapeutic family counselling with the view of focusing on rehabilitating the relationship between CC and the mother and addressing ongoing issues of the father’s attitude towards CC’s relationship with the mother and with respect to this:
(a) The Family Counsellor shall be a clinical psychologist who specialises in working with children who have been aligned with one of their parents or, in the alternative, a social worker with experience as a Family Consultant employed by the Family Court of Australia or the Federal Circuit Court of Australia;
(b) Both parties do all acts and things to enrol CC and themselves in therapeutic family counselling;
(c) Counselling sessions are to take place as follows:
(i)Individual sessions between the Family Counsellor and CC;
(ii)Sessions, either individual or family, with either or both of the parties and such other members of the family as the Family Counsellor recommends;
(d) The Family Counsellor shall be provided with the Expert Reports of Dr R dated 7 November 2017 and 7 June 2019.
The mother must continue to attend upon her treating medical practitioners including her treating psychiatrist for such period of time as the psychiatrist considers necessary, and the mother do all things to instruct Dr GG, or any other treating mental health professional, to inform the father of any of the following:
(a) She is not complying with treatment or a prescribed medication regime; or
(b) That she ceases treatment with that clinician; or
(c) If known, the identity of any new treating clinician.
Disputes
The process to be used for resolving disputes about the interpretation, implementation or enforcement of these Orders shall be as follows:
(a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or by the Commonwealth Attorney General; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
Before an application is made to a Court for a variation of these orders to take account of the changing needs or circumstances of the Children or of the mother or the father:
(a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
The Court Notes
The parties have agreed that the children CC and DD shall attend HH School in 2020.
The Independent Children’s Lawyer (“ICL”) seeks an order that each party pay sum of the ICL’s costs of $12,614.00.
The Court further orders that:
The parties are to file and serve written submissions concerning the ICL’s claim for costs within 28 days of the date of these orders.
If any party, other than the ICL, seeks an order for costs, an appropriate application to the Court may be made within 28 days of the date of these Orders (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Demetriou & Demetriou has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC2580/2017
| Mr Demetriou |
Applicant
And
| Ms A Demetriou |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings between the applicant father, Mr Demetriou (“the father”), and the respondent mother, Ms A Demetriou (“the mother”).
The matter was listed for final hearing before the Court on 2 September 2019 for seven days. When the trial commenced, there were numerous parenting and property issues requiring determination. However, the majority of the parenting issues were settled by consent on 3 September 2019, and the entirety of the property proceedings settled by consent on 6 September 2019. This judgment concerns only the remaining parenting issues which are set out in more detail later in these reasons.
There are four children of the relationship (“the children”):
a)AA born in 2002, presently 17 years of age; and
b)BB born in 2002, presently 17 years of age.
c)CC born in 2005, presently 14 years of age;
d)DD born in 2007, presently 12 years of age;
All four children live with the father and spend time with the mother.
Pursuant to the final consent parenting orders, the agreed parenting arrangements are, in summary, as follows:
a)The parties have several parental responsibility for AA and BB, who spend time with and communicate with the mother according to their wishes. In other words, no order has been made allocating parental responsibility in relation to AA and BB. They spend time with the mother in accordance with their wishes.
b)The father has sole parental responsibility for CC who spends time with the mother during the school term each alternate weekend from 5:30 pm Friday until 5:30 pm Sunday or 5:30 pm Monday if a public holiday, but subject to his wishes. There is also agreement that CC will spend time with each parent on special occasions, subject again to his wishes.
There is no agreement about parental responsibility regarding DD, nor the time he should spend with the mother during term time, although there is agreement DD will spend half of the school holidays with his mother.
There is also a dispute about schooling for CC and DD, and certain injunctions sought by the father in respect of the mother. I will discuss the areas of disagreement more fully later in these reasons.
Background
The parties commenced cohabitation in 1991, and married in 1998. In October 2016, the property at D Street, Suburb E (“D Street property”), was purchased in the mother’s name. This property was comprised of about 11.5 hectares of land, has a large seven bedroom home, with a separate cottage on the premises.
In late 2016, the property at Z Street, Suburb E (“the shack”), was purchased in the father’s name.
There is a factual dispute about the date of separation. The father submits the parties separated in March 2017, and the mother contends the parties separated in December 2016/January 2017. For the purpose of this judgment, nothing turns on this factual dispute.
Since separation, the mother remained living at the D Street property. In October 2016 the father and the four children moved to the cottage situated at the D Street property and in December 2016 the father moved to the shack with AA, BB and CC. At this point, DD returned to live with his mother at the D Street property.
In April 2017, the mother prevented the older children spending time with their father, with a corollary of this being that DD did not spend time with his older siblings.
The father filed an Initiating Application on 1 May 2017, seeking parenting orders in the Federal Circuit Court of Australia.
On 29 May 2017, interim orders were made by consent cementing the living arrangements of the children referred to in paragraph [11], and orders were made to allow the parents to spend time with all four children. Additionally, an Independent Children’s Lawyer (“ICL”) was appointed and Dr R was appointed as a single expert to prepare a report. The parties also agreed to orders that would prevent either party self-medicating the children and consuming alcohol to excess whilst the children were in their care.
On 18 October 2017, interim parenting orders were again made by consent for the children, including DD, to live with the father and spend time with the mother each alternate weekend and one weeknight each week. Interim orders were also made to restrain the parents from self-medicating the children. Additionally, orders were made on a without admissions basis to restrain any of the children from being brought into the presence of any new partner of either party or a person named Ms FF.
On 20 December 2017, interim parenting orders were made by consent maintaining the status quo and orders were made for the school holidays.
The father filed an Application in a Case on 9 May 2018, seeking the mother’s time with the children be supervised. That application was listed before Senior Registrar Campbell on 15 June 2018, and orders were made for the mother’s time with the children to be supervised by one of the mother’s siblings.
The mother filed an Application seeking a review of Senior Registrar Campbell’s decision on 21 June 2018. This application was ultimately dealt with by way of interim consent orders made on 12 November 2018. Orders were made for the mother to spend time with the children during school holidays and varied the orders made on 20 December 2017 and 15 June 2018 to the effect of the mother being able to spend unsupervised time with the children on the weeknight each week, with supervised time to remain on the weekend between the hours of 6:00 pm and 8:00 am.
The parties were divorced in 2018.
On 21 September 2018, the matter was listed before Justice McClelland (as he then was) for a first day less adversarial trial. On 11 April 2019, the matter was transferred to my docket and the matter was listed for final hearing with an estimate of seven days commencing on 2 September 2019.
On 3 September 2019, being the second day of the hearing, the parties consented to a range of final parenting orders. These are set out in Annexure “A” to this judgment.
Issues in dispute
The outstanding issues between the parties are, as follows:
a)Allocation of parental responsibility with respect to DD;
b)The duration of school term time to be spent between the mother and DD and on what terms;
c)Whether an order should be made in respect of CC and DD’s schooling;
d)Whether an order should be made restraining the mother from submitting the children to psychiatric, psychological or related medical examination; and
e)Whether an order should be made in respect of the mother’s ongoing psychiatric treatment.
Proposals
In respect of the outstanding parenting issues, the father sought orders as follows:
(1)That all prior parenting Orders with respect to DD born in 2007 be discharged.
(2)That the father have sole parental responsibility for DD with respect to decisions about his education, health and religion, provided that the father:
(a) Notifies the mother of any proposed decision relating to the long term care and welfare of DD about:
(i)Proposed decisions about which school DD shall attend;
(ii) Proposed decisions about the long term medical issues affecting DD;
(b) Ensures such notification is given to the mother at least twenty-eight (28) days before the final decision is made by the father;
(c) Takes into consideration any views expressed by the mother in respect to such proposed decisions; and
(d) Advises the mother of his decision.
(3)That the child DD spend time with the mother during school term, each alternate weekend from 5:30 pm on Friday until 5:30 pm on Sunday, or until 5:30 pm on Monday if a public holiday.
(4)That without admissions the parties are restrained from causing the children or any of them to be brought into the presence of Ms FF.
(5)That the mother be restrained from submitting the children to any psychiatric, psychological or related medical examination without the written consent of the father other than in an emergency and with the referral of the children’s General Practitioner.
(6)That the mother must attend when required upon her treating psychiatrist and must comply with all directions and treatment recommendations of the specialist.
In submissions the father also proposed an order requiring the mother to cause her treating psychiatrist to notify him if the mother ceased compliance with treatment regimes, in the following terms, to which the mother raised no objection:
And the mother do all things to instruct Dr GG, or any other treating mental health professional, to inform the father of any of the following:
(a) She is not complying with treatment or a prescribed medication regime,
or:
(b) That she ceases treatment with that clinician, or;
(c) If known, the identity of any new treating clinician.
In respect of the outstanding issues, the mother sought orders as follows:
(1)That all previous parenting orders be discharged.
(2)That there be no order for the allocation of parental responsibility for the child DD born in 2007 or alternatively the parties have equal shared parental responsibility for DD.
(3)That DD spend time with the mother:
(a) During school terms from the conclusion of school Friday to the commencement of school the following Wednesday and in each alternate week thereafter commencing the first Friday from the date of the Orders;
(4)The children CC and DD are to attend HH School at Suburb EE until the completion of their secondary education.
(5)Both parties be restrained from submitting the children or any of them to any psychiatric, psychological or related medical examination without the recommendation of the particular child’s treating medical practitioner.
In respect of the outstanding issues, the Independent Children’s Lawyer sought orders as set out in the Proposed Minute of Orders which became Exhibit “ICL 1”:
(1)That the father have sole parental responsibility for the child DD born in 2007 with respect to decisions about his health provided that the Father shall consult with the Mother about decisions to be made in the exercise of his sole parental responsibility as follows:
(a) That the Father will advise the Mother in writing of the decision to be made and all related information;
(b) Within fourteen (14) days the Mother will respond to the Father in writing providing her views and input which the Father will genuinely consider; and
(c) The Father will make the decision and provide the Mother in writing advice of the decision and the reasoning behind his decision.
(2)In all other respects the parties are to have equal shared parental responsibility for the child DD.
(3)The child DD is to spend time with the Mother during the school term as agreed between the parties but in default of agreement each alternate weekend from immediately after school on Friday until 5:30pm on Sunday or until 5:30pm on Monday if the Monday is a public holiday.
(4)The parties shall comply with any treatment plan or guidelines recommended by the children’s treating medical practitioners or other therapists, including but not limited to provision of medication.
(5)That the child CC engage in therapeutic family counselling with the view of focusing on re-establishing the relationship between CC and the Mother and addressing ongoing issues of the Father’s attitude towards the children’s relationship with the Mother and with respect to this:
(a) The Family Counsellor shall be a clinical psychologist who specialises in working with children who have been aligned with one of their parents or, in the alternative, a social worker with experience as a Family Consultant employed by the Family Court or the Federal Circuit Court;
(b) Both parties do all acts and things to enrol CC and themselves in therapeutic family counselling;
(c) Counselling sessions are to take place as follows:
(i)Individual sessions between the counsellor and CC;
(ii)Family sessions with the Mother and the children; and
(iii)Family sessions with the Father and the children.
(d) The Family Counsellor shall be provided with the Family Reports of Dr R dated 7 November 2017 and 7 June 2019.
(6)Without admissions the parties are restrained from causing the children or any of them to be brought into the presence of Ms FF.
(7)The mother is restrained from submitting the children or any of them to any psychiatric, psychological or related medical examination without the written consent of the Father other than in an emergency and with the referral of the children’s General Practitioner.
(8)The mother must continue to attend upon her treating medical practitioners including her treating psychiatrist for such period of time as the psychiatrist considers necessary.
(9)The children CC and DD are to attend HH School at Suburb EE until the completion of their secondary education.
(10)That the parties pay the Independent Children’s Lawyer’s costs in equal shares, each to pay the sum of $12,614.00.
Expert evidence
There were two family reports prepared for these proceedings, marked Exhibit “Court 1” and Exhibit “Court 2”. Both reports were prepared by Dr R. The first report was prepared on 7 November 2017 (“2017 report”), and the second on 7 June 2019 (“2019 report”).
I will refer to the content of both reports as necessary during the course of these reasons.
Dr R also gave oral evidence. I will refer to this evidence as necessary in the course of these reasons.
The Parents
Both parents were cross examined.
The father
In Exhibit “Court 1” Dr R described the father as an “alert man who speaks rapidly and with conviction” (p. 10, 2017 report). I had the same impression. The father’s answers in cross examination satisfied me that he generally tried to answer questions frankly. I did form the impression that he held an exasperated and unsympathetic attitude towards the mother. He clearly held an entrenched view that the mother should not be involved in decision making regarding the children. He also appeared to harbour some resentment towards the mother for causing the burden of parenting to fall upon him, for example, in cross examination he stated “I’ve had to take the children to school every day for 15 years.” I accept that the level of frustration the father feels towards the mother may have caused him to overstate the parenting deficiencies he perceived in the mother. Despite expert evidence to the contrary, he seemed unable to concede the mother’s mental health had improved in recent years.
The mother
Senior counsel for the mother submitted she was an impressive witness despite a range of disabling conditions. He submitted she answered questions directly and responsively, and against her interest, and gave child focussed evidence.
When asked in cross examination about his impressions of the mother, Dr R said:
When I saw her, particularly the face-to-face, there were still a number of concerning things about the way she’s – about her level of adjustment…in some ways she behaved – she was like someone who was – who had taken just a bit too much Valium, if I could put it that way – bit disorganised, a bit bewildered; at times her conversation would head off on tangents or just sort of stop in mid-sentence, almost.
Contrary to the submissions of senior counsel for the mother, the mother struck me the same way during her oral evidence. When answering questions in the witness box the mother exhibited many of the same features of vagueness and at times trailed off into silence without completing her answers. One important example was when asked by counsel for the ICL whether she could get DD to school on time, she answered in a disjointed fashion and did not engage with the question.
Senior counsel for the mother argued that the father’s evidence should be treated with caution, since the evidence showed he clearly lied for financial advantage during the proceedings. He argued that, where they differed, the mother’s evidence should be preferred to that of the father.
The credibility of the parties assumed some importance in final submissions. Senior Counsel for the father proved an aide memoire of references in the evidence said to demonstrate a range of past parenting deficits in the mother’s parenting. Senior counsel for the mother contested many of them by reference to the mother’s evidence. It is not necessary to rehearse all these factual matters. However, a number of the mother’s past parenting problems were not in dispute, nor was the evidence about her past and present mental health. I will refer to these later.
In my view, despite the contending submissions about each of the parents as witnesses, in truth, the narrow field of remaining debate has meant that there are few serious factual disputes which require resolution by the Court. I will refer to them as necessary later in these reasons. As will become apparent, some of the contentions made by the parties about each other as witnesses have relevance to the question of parental responsibility and the mother’s parenting capacity.
The children
As already pointed out, some orders have been made by consent for AA, BB, CC, and DD regarding school holiday time. This judgement is primarily concerned with DD. However, for the purposes of this judgment it is necessary to record some matters about each child.
AA and BB are twins. AA is in Year 11 at JJ School. BB has left school and is currently studying at TAFE three days per week.
CC is presently in Year 9 at JJ School. Dr R described him as a “quite diminutive child for his age, however, he had a very animated disposition and he quickly engaged in what seemed to be quite open discussion. He seems to be quite an inquisitive boy. He seemed quite articulate. He spoke rapidly but he generally did not seem to be distractible or to lose the threat of what he was saying” [p. 35, 2017 report]. In his 2019 report at p. 23, Dr R described CC as settled, attentive, co-operative and well mannered.
DD also attends JJ School and is in Year 6. In his 2017 Report, Dr R described DD:
as an alert boy with a buoyant personality. He appeared to be quite distractible, restless and excitable. He was so disorganised in his thinking he almost spoke in a stream of consciousness way. He also seemed to have some expressive language difficulties… I was concerned that his cognitive abilities lie in the quite low range [pg. 38, 2017 report].
In his 2019 report at page 25, Dr R described a boy who was relaxed and amiable, and who could concentrate on questions and give reasonably considered answers. The IQ testing available to Dr R for his 2019 report confirmed an IQ in the Low Average range. DD’s 2018 school reports described him as a polite and friendly student and pleasure to teach. Dr R noted an extensive range of incidents, while DD lived with his mother, including attendance, lateness and lack of provision of lunch, had largely disappeared once DD moved to his father’s house (p. 27, 2019 report].
There is agreement for CC and DD to attend HH School from 2020. I note here that whilst there is agreement that the children attend this school, there is disagreement about whether the Court should make an order requiring this.
Although this judgment is concerned with parenting orders for DD, it is relevant to refer briefly to some aspects of CC’s health, because it is likely he will spend time in the mother’s home with DD. CC has been diagnosed with ADHD and in the 2017 report it was noted that he was taking medication, however, in the 2019 report at page 8 it was reported that he had reduced his medication.
Dr R expressed the view that DD is probably the cognitively least able of the children due to neuro-developmental problems, although he did not suffer ADHD. Dr R shared the mother’s concerns about DD’s learning difficulties, which he believed were not being addressed adequately by DD’s current school (p. 28, 2019 report).
Dr R noted that CC continues to display significant oppositional defiant behaviour towards his mother (pp. 28-29, 2019 report). Dr R observed this behaviour affected DD:
I also note that [DD] was quite easily drawn into [CC’s] [sic] disrespectful behaviour with their mother when I saw them together, although this was short lived. At other times he was a little attention seeking with her in a gentle way [p. 30, 2019 report].
Relevant Law
Legislative framework
Despite the narrowness of the outstanding issues, each party seeks parenting orders, and the legislative pathway must be followed. Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act. In the circumstances of this case, s 65DAB has no application.
The best interests of a child are the paramount consideration in making parenting orders (s 60CA of the Act). The best interests of a child, for the purposes of Part VII, are determined by reference to the primary and additional considerations set forth in s 60CC(2) and (3) of the Act.
One important remaining issue is the allocation of parental responsibility in relation to DD. As appears from the various proposals, the father seeks sole parental responsibility for DD regarding religion, health and education. The mother’s primary position was to seek no order allocating parental responsibility regarding DD. She argued each parent should have the parental responsibilities at common law as enshrined in s 61C, which means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). The ICL proposes that the father have sole parental responsibility concerning health, with an obligation to consult the mother, and that “in all other respects, the parties are to have equal shared parental responsibility for the child DD.”
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child. The proposals of the parties clearly raise a question about the application of the presumption.
Where the presumption applies, it conditions the Court’s power to make parenting orders: MRR v GR (2010) 240 CLR 461 at [20]; Cox v Pedrana (2013) FLC 93-537 ; (2013) 48 FamLR 651 at [16], [17] and a trial judge is probably required to make an order for equal shared parental responsibility: Damiani & Damiani (No. 2) [2009] FamCAFC 215 at [133], [134]; Marvel v Marvel (2010) 43 FamLR 348 ; [2010] FamCAFC 101; (2010) 43 Fam LR 348; 240 FLR 367 at [104]; Froth & Schneider [2011] FamCA 378 at [226]; Heath & Hemming (No 2) [2011] FamCA 749 at [89].
It is important to realise that if the presumption is applied, the order for equal shared parental responsibility should be made for all aspects of parental responsibility. An order that a child’s parents have shared parental responsibility for some but not all aspects of parental responsibility is not “an order for equal shared parental responsibility”: Doherty & Doherty [2016] FamCAFC 182 at [34], [57]. So if the presumption applies, none of the orders regarding parental responsibility as sought by the parties should be made, unless the Court is satisfied the mother’s fall-back position in respect of parental responsibility should be made. This includes the order proposed by the ICL, since it would allocate sole responsibility to the father in respect of health, even though it expressly refers to equal shared parental responsibility “in all other respects”.
The presumption applies unless there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s 61DA(2) of the Act) or it may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his or her parents to have equal shared parental responsibility (s 61DA(4) of the Act). No party relied upon s 61DA(2) to argue the presumption should not apply. All argued in different ways for the purposes of s 61DA(4) that the presumption was rebutted because it would not be in the best interests of DD for his parents to have equal shared parental responsibility.
As the Full Court made clear in Dundas & Blake (2013) FLC 93-552 at [61] application of the presumption is mandatory, unless the evidence satisfies the Court that it is not in the best interests of the child, 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 at [38]:
There cannot be any doubt that the legislative intent is that the statutory presumption is of central importance. The corollary of that is that there must be convincing proof as to the children’s best interests for s 61DA(4) to be activated to rebut the presumption.
The Full Court pointed out in Cox v Pedrana (supra) at [19] (following MRRv GR (supra) at [7]) if the presumption is not to apply or is rebutted, the relevant findings will ordinarily be made in the course of, or informed by, conclusions as to the best interests of the children, reached by an assessment of the considerations set forth in s 60CC(2) and (3).
I note here that the mother’s fall-back position was that the presumption is not rebutted and should apply, and there should be an order for equal shared parental responsibility for DD.
If an order for equal shared parental responsibility is made or proposed to be made, s 65DAA will be engaged, obliging the Court to consider whether the child should spend equal time or substantial and significant time with each parent. Recently in Tibb v Sheean (2018) 58 FamLR 351; [2018] FamCAFC 142 at 366 [68], the Full Court (Murphy and Cronin JJ, Strickland J generally agreeing) has made clear that s 65DAA “does not demand the making of any parenting order for any type of time”, (original emphasis) and the section is driven by findings as to the best interests of the child. Section 65DAA is not engaged by the presumption, but by an order for, or the proposal to make an order for, equal shared parental responsibility. An order allocating parental responsibility to be shared in some other manner which does not amount to, or is not specified as, “equal shared parental responsibility” does not engage s 65DAA: Tibb v Sheean (supra) at [69].
On the other hand, where a parenting order is made for any degree of shared parental responsibility, including equal shared parental responsibility, s 65DAC is engaged. This means that where the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child, the parties are required to make the decision jointly, and are obliged by s 65DAC(3) to make a genuine attempt to consult and make the decision jointly. The proposals of the father and the ICL, and the mother’s fall-back proposal for equal shared parental responsibility, would enliven s 65DAC to the extent their proposals seek orders which would result in shared parental responsibility. Of course, if the Court accepted the mother’s proposal that no order be made allocating parental responsibility, neither s 65DAA or s 65DAC would be engaged.
I observe here that even where the presumption is inapplicable or is rebutted, questions of equal or substantial and significant time remain important, and an order may provide for equal or substantial and significant time: Damiani (supra) at [140] - [142].
Before expressing a concluded view about the application of the presumption and any allocation of parental responsibility, it is not only desirable but necessary to consider and make findings about the best interests of DD by reference to s 60CC of the Act.
Best interests of the child
The best interests of a child are to be determined by an examination of the considerations as set out in s 60CC of the Act. These factors are to be considered, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s 60B of the Act. It is not necessary to set out the principles. Neither party made specific reference to them. I have taken them into account in the manner explained in Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24 at [74] - [75].
In Jollie & Dysart [2014] FamCAFC 149 at [49] the Full Court made clear what the Act mandates is a “consideration”, a mental process of analysis that has proper regard to such of the enumerated matters in s 60CC as are judged to be relevant to the particular circumstances of the child in question. In Tibb v Sheean (supra) at [68], the Full Court (Murphy and Cronin JJ, Strickland J generally agreeing) gave extensive discussion of the concept of “consider”, holding that although consideration is mandatory, express discussion of each statutory factor in s 60CC is not: see Banks & Banks [2015] FamCAFC 36; (2015) FLC ¶93-637 at [48] and Tibb v Sheean (supra) at [84].
I also bear in mind that in Tibbv Sheean (supra) at [87] the Full Court drew attention to the relative informality demanded by s 97(3) and Division 12A of the Act and said:
In a case without pleadings (as is the case here) the circumstances of the case and the overt manifestations of what has been “considered” will emerge from the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial. In turn, those matters will inform what is, and what is not, included in the reasons.
Primary considerations
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations the Court is to give greater weight to the consideration in sub-section 2(b) (see s 60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
As to s 60CC(2)(a), the Full Court of the Family Court of Australia in Sigley v Evor (2011) 44 Fam LR 439 endorsed a number of earlier judicial statements of interpretation:
a)A “meaningful relationship” as one which is “important, significant and valuable to the child”: (citing Mazorski & Albright [2007] FamCA 520 and McCall v Clark (2009) FLC 93-405); and
b)A “prospective approach” is the preferred approach to s 60CC(2)(a) requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall (supra) at [118]-[119];
c)Depending on the factual circumstances “the present relationship approach” may be relevant, requiring the Court to examine the evidence “of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which finding will be reflected in the orders ultimately made”; however, it is not the preferred approach since s 60CC(3)(b) of the Act requires a Court to explore existing relationships between a child and the child’s parents and other persons, and application of the present relationship approach would limit a Court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial: McCall (supra) at [118]-[119];
d)The legislation aspires to promote a meaningful relationship, not an optimal relationship, (M and S (2007) FLC 93-313 per Dessau J; Godfrey & Sanders [2007] FamCA 102 per Kay J and Champness & Hanson (2009) FLC 93-407 per the Full Court); and
e)A “meaningful relationship” is a legal construct, not a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship: Sigley & Evor (supra) at [136] following Champness (supra) at [191].
The “meaningful relationship” consideration in s 60CC(2)(a) of the Act supports the position that as much time as possible with both parents is in the children’s best interests.
All parties accepted that DD would benefit from a meaningful relationship with both his parents. The central question was how the orders of the Court would promote a prospective meaningful relationship with the mother. This question can be partly answered by the time to be spent by DD with his mother, and all parties argue he should spend time with his mother. The attitude of CC to his mother, being quite rude and dismissive, and the influence this behaviour may have on DD, noted above at [46], are also relevant to how this question should be answered. I will return to this question later in these reasons.
Section 60CC(2)(b), “abuse” and “family violence”
There was some evidence of past arguments between the parents and angry behaviour by the father. For example, in 2017, when the children were first interviewed by Dr R, the three elder children all stated that they were not surprised that their parents had separated. They had witnessed their parents fighting, but had not witnessed any violence. Dr R confirmed this in his assessment:
In my view the likelihood is that the children have been exposed to at least verbal violence by their father, possibly most often directed towards their mother, however they prefer to minimise that, probably because they also recognise that their father is a more capable and consistent parent than their mother is at the moment [p. 48, 2017 report].
In the 2019 report it is noted that:
When CC [sic] said she [the mother] should give up the Court case and just let them come when they want, AA is reported as having reminded CC [sic] that their father used to scream at their mother, get drunk, and punch the walls leading to the children having to hide with their mother when they heard him coming up the stairs [p. 8, 2019 report].
However, at the final hearing no party argued that any risk factors presently existed falling within s 60CC(2)(b) of the Act, or within the terms “abuse” (see s 4) and “family violence” as defined in the Act (see s 4AB). The father argued that the evidence showed an element of risk existed in the mother arising from a history of deficits in her parenting capacity. However, it was not suggested this element of risk should be addressed by denying time with his mother or supervision of the mother’s time. Rather the area of debate concerning risk lay in the factual matters showing problems with the mother’s parenting capacity in the past and related to the issue of allocating parental responsibility. I will therefore deal with the elements of risk, such as they are, later in these reasons.
Additional considerations
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as are set out below:
(a) The child’s views
In R and R (Children’s Wishes) (2000) FLC ¶93–000, the Full Court of the Family Court of Australia said:
There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.
In Bondelmonte & Bondelmonte (2016) FLC 93-698 the Full Court of the Family Court of Australia said at [97] that it is not, and never has been, the case that a judge is obliged to make orders consistent with a child’s stated views (here the Full Court made reference to H & W (1995) FLC 92-598; and Maldera & Orbel (2014) FLC 93-602). In dismissing the appeal from this decision, the High Court of Australia confirmed in Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 at [34] s 60CC(3)(a) does not require a child’s views to be accorded something approaching a decisive weight, being but one consideration of a number to be taken into account in the overall assessment of a child's best interests. Rather, a primary judge is obliged to consider the weight which should be given to any stated views, and their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed: Bondelmonte (supra) at [35]. Thus, context is critical and it is a matter for a judge to determine how giving effect to a child’s stated view accords with the child’s best interests (R & R (Children’s Wishes) (supra); Gillard & Gillard [2015] FamCAFC 169 at [81]).
The relevant views here are those expressed by DD. He made various comments in respect of the current orders and spending time with his mother in the 2019 report at p. 27:
I asked him whether there was anything about the orders that he would change if it was up to him. He said that he would changes [sic] Thursdays for Fridays. I did not completely understand how that would work, and when I asked him to explain, he seemed to become confused himself, then he changed his mind and said he would not change it. He also did not seem to be able to explain what the reason for the change was and he added that he did not want to change the amount of time that he spends with his mother.
I asked him how he felt about spending time with his mother. He said there is nothing to do there and that his mother comes into his room and sweeps. He thought that this was possibly because she misses him and she wants to spend more time with him.
I take account of Dr R’ assessment that DD’s cognitive abilities lie in a low range. His views as expressed to Dr R betray a degree of ambivalence about time with his mother but also some confusion. I take account of DD’s views subject to these qualifications.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
The Mother
Overall I am satisfied all the children have a loving relationship with their parents, but these relationships have been scarred by conflict between the parents and more specific issues such as CC’s disrespect of his mother.
Overall, the children’s relationship with the mother have been more compromised than their relationship with the father. This is clear for DD, and for CC, whose relationship with the mother may have an impact upon DD.
In the 2017 report at p. 48, Dr R noted that the “children were exposed to considerable parenting deficits in their mothers hands in particular”.
The impact of these deficits on the children’s relationship with the mother seem to have carried over into more recent times. By way of example, I refer to the observations made of the children’s interaction with the mother at the interviews conducted for the purpose of the 2019 report:
Subsequently, having seen each of the children by themselves, I indicated to the mother that she could take the children away for an hour or so while I spoke with the mother alone. I gave her a time by which to return. In the event, it transpired that she did not take the children off the floor. Instead they waited in the main reception area. When I went out, the mother was seated outside the grouping in which the children were sitting, each playing with devices or engaged in a personal activity. The mother still appeared troubled and near tears. In the brief period when I ascertained that they had not moved off the floor, none of the children made any attempt to interact in a positive way with their mother.
I then asked them to accompany me around to my office, which they did and everyone took a seat. Apart from AA who made a polite and respectful reference to his mother as she seated herself, the other children seemed to ignore her. I touched again on how it was that they had not gone anywhere else. The mother told me the children had not wanted to go down stairs [sic] and that they had not wanted to get anything to eat. CC [sic] then made what appeared to be a disparaging remark under his breath directed at his mother. BB and DD giggled. The mother became quite tearful and the three children were openly amused by this, with CC [sic] again making a disparaging reference to his mother’s discomfort. AA seemed uncomfortable by his siblings’ behaviour and he tried to quiet them, albeit ineffectively.
I tried to open up some communication between them by confirming when they spend time with their mother, and I asked how they spend it. I receive [sic] some desultory responses from the children with references to some electronic games, going to the skate park and to the movies, with AA taking this most seriously and CC [sic] commenting several times that it was just boring. The mother took little or no part in this discussion. She seemed to shrink back and hunch over in her chair. She appeared to be quite powerless, withdrawn and defeated in the face of CC’s [sic] uncooperativeness in particular, and her tearfulness continued. By that juncture, after about ten minutes, it was apparent that neither AA nor the mother was going to be successful in turning around what was becoming an increasingly humiliating situation for the mother, so I terminated that part of my assessment.
The mother told me later that while she was with the children in the waiting room prior to my seeing her with them, CC [sic] had been saying things to her like “Mum stop lying to yourself”, “you’re not strong enough”, “how are you going to discipline anyone”. She added that he also deliberately makes messes at her home and that generally things are getting worse and worse with him. She went on to tell me that in the waiting room DD had been drawn into CC’s [sic] behaviour, and BB had become a bit silly as well, but that AA had been close and warm with her and had tried to find out what was wrong. She added that if CC [sic] is rude and disrespectful to her, AA will say something appropriate, although I understood from what she said that CC does not take a great deal of notice of him [p. 11, 2019 report].
Even though all the children live with the father, and AA, BB and CC spend time with the mother according to their wishes, the question of the mother’s parenting deficits remains significant for DD. The observations of Dr R, set out in the previous paragraph give some context to the position of DD within the family group and the mother’s parenting capacity. In the 2019 report, Dr R referred again to this. For example (p. 30, 2019 report):
As I indicate in my initial report, I had significant concerns about their relationship at that time, and particularly that DD was playing more a role of a comforter to his mother than she was consistently oriented towards his welfare. On this occasion, DD was able to express love for his mother and basically that he enjoys spending time with her. However not surprisingly, he also expressed some apprehension that the more concerning aspects of her behaviour which were occurring when I first saw them together might recur again. He was able to articulate that he had not actually observed any of these things since then, and he also made references which suggested to me that his mother sees him as her favourite and the most approachable, and that she tries to be more involved with him and his activities during the visits than with the others. However these matters were expressed in rather disjointed terms compatible with DD’s somewhat compromised cognitive abilities.
Dr R’ observations show the mother’s relationship with CC is characterised by disrespect, and that DD can be drawn into such behaviour at times, although in oral evidence Dr R did not seem to think this was a serious problem. I refer to this further below at [95].
(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to:
(i) participate in making decisions about major long-term issues in relation to the child;
(ii) to spend time with the child;
(iii) and to communicate with the child
I am satisfied that both parents have taken opportunities to participate in making decisions about major long-term issues in relation to DD, to spend time and communicate with him. The mother’s parenting capacity problems, discussed below, have however interfered with her attempts to take such opportunities.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
If DD is to spend more time with his mother in accordance with the mother’s proposal, there will be a greater scope for DD suffering adversely from the risk that the mother may relapse into the disorganised behaviour she has exhibited in the past which resulted in DD being late for school, not being picked up on time and being insufficiently supervised. There was no dispute that these deficits in parenting had appeared in the past.
Consequently, Dr R expressed the view orally orders made in respect of the mother’s time with DD need to take in to account practical considerations which minimise her role in preparing him for school.
(f) the capacity of:
(i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs
The father’s parenting capacity is not in doubt. He has been for some time, and will continue to be, the primary carer of the children. I am satisfied he has a satisfactory capacity to provide for the needs of the children.
The mother’s parenting capacity is clearly a significant issue. The evidence makes clear the mother has a range of mental health problems, some of long standing, which clearly adversely affect her capacity.
In Dr R’ 2017 report at p. 19, he noted that he spoke to the mother’s treating psychiatrist Dr GG who indicated that the mother has been an extremely challenging client, and that at one point, problems with attendance and lateness for consultations had become so severe that she had told the mother that she may have to withdraw from treating her.
In the 2017 report at p. 46, Dr R formed an overall opinion that:
The mother suffers from a quite severe personality disorder of a borderline type associated with a number of co-morbid mental illness diagnoses and inappropriate use of medications, as is often the case with such patients. It is clear that she has had quite intensive psychiatric treatment which is fully documented for at least seven years, and that her level of functioning does not appear to have improved as a result of treatment. If anything, it has probably deteriorated.
For his 2019 report, as well as interviewing the mother, Dr R again spoke to Dr GG, who told him she felt the mother has made good clinical progress over the past two years. She had been very cooperative about regular weekly attendance at consultations and she believed the mother had adhered strictly to her medication regime, and saw no evidence the mother was taking any additional medication or diverged from what was prescribed (p. 8, 2019 report).
The mother has a history of suffering with depression, and has experienced the side effects that accompany depression, such as chronic fatigue (p. 13, 2017 report). She has been using prescription medication, from time to time, to assist her with her mental health issues since the age of 18, when she began her psychiatric treatment (p. 15, 2017 report).
In his 2017 report at p. 24, Dr R recorded that “she [the mother] seemed to have difficulty putting her thoughts together quickly or in an organised way, much more so that I would have thought for a person of her obvious intelligence.” He further noted that the mother often digressed and was disorganised. Dr R assessed the mother has “having difficulty organising her thoughts to respond to my quite detailed questions”, causing her to be stressed (p. 46, 2017 report).
In his 2019 report at p. 5, Dr R recorded that the mother is taking a mood stabilising anticonvulsant called Lamotrigine, the anti-anxiety medication Clonazepam, and an ADHD medication called Dexamphetamine and an antidepressant Pristiq. He observed that the mother was demoralised and distressed when he saw her, but when he saw her alone she was more composed and “quite organised in her account [and] did not digress a great deal at all”. Dr R expressed the view that this was consistent with the views of Dr GG. However, I also take account of the impressions of the mother stated by Dr R in cross examination, set out above at [33].
I also take account of the evidence of a range of the mother’s past behaviours relevant to parenting which were not disputed: obtaining, and permitting DD to take, Catapres, although this was not properly prescribed for him; concession in cross examination that the mother had driven whilst unlicensed; failing to get DD to school on time and provide a proper lunch, and failing to pick him up when required. These are also consistent with lack of focus on parenting responsibilities.
Dr R was of the clear view that the mother continues to encounter difficulties with a lack of authority and effectiveness in dealing with CC. However, in cross examination he stated that “I don’t think it’s going to be a big problem with DD” which I understood to mean that the mother was unlikely to experience the same difficulties of effectiveness in her parenting of DD.
In her report dated 11 August 2019 Dr GG sets out the lengthy history of the mental health struggles of the mother. Dr GG states that the mother has “become more resilient and has been able to maintain functionality”. The mother told Dr GG that she is able to display equanimity and enjoys interactions with the children. Dr GG holds the view that the mother is “increasingly capable of maintaining her composure when triggered”. She is “able to stay on topic much more than previously” and is now fully compliant with all medication recommendations.
I am satisfied the mother’s mental health has improved in recent years and she is taking a responsible approach to managing her problems, including taking prescribed medications. Nonetheless, the evidence of Dr GG, coupled with my own observations of the mother, also satisfy me that the mother continues to suffer a range of long-term mental health problems, even if her presentation for such problems is now not as severe as in the past. These are likely to continue to affect her parenting capacity.
I am not persuaded any of the proposed orders would adversely affect the mother’s parenting capacity: A v A (1998) FLC 92-800
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I have nothing to add here beyond my remarks concerning the parenting capacity of each parent.
(j) any family violence involving the child or a member of the child’s family;
I have nothing further to add beyond the discussion above in connection with s 60CC(2)(b).
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The parties have been involved for several years in acrimonious parenting disputes. It would clearly be preferable for any orders to be least likely to lead to further litigation. I am satisfied the proposed orders will do so.
The mother and the ICL proposed an order that CC and DD are to attend HH School at Suburb EE until the completion of their secondary education. Although there was agreement that CC and DD are to attend HH School, the father resisted an order compelling this attendance until the completion of secondary school. He argued that such an order was not in the best interests of either boy. Such an order would compel attendance at HH School thereby removing any flexibility in changing schools if that became necessary or desirable in the future. As the father pointed out, neither boy has yet had any experience of HH School. The order does not accommodate the possibility that either boy may experience difficulties there. While on one view such an order would remove the scope for dispute between the parents about schooling, it may well produce further litigation if one parent formed the view a change of school should happen and the other parent did not agree. For these reasons I do not propose to make an order compelling attendance at HH School. I will note that the parties have agreed to this school for CC and DD at present. As will be seen I propose to make a partial order for equal shared parental responsibility which will include education. Future issues around schooling will require a co-operative approach.
(m) any other fact or circumstance that the court thinks is relevant
I have nothing to add here.
Parental Responsibility For DD
I return to the question of the allocation of parental responsibility regarding DD. As discussed above, the parties agreed that in respect of the three older children, the father is to have sole parental responsibility. However, the mother submitted that no order allocating parental responsibility for DD should be made, or, as a fall-back, sought an order for equal shared parental responsibility in respect of DD. Thus the mother argued that the presumption should be rebutted and as a fall-back it should not be rebutted. The father sought orders that, consistently with the position of the other children, he also have sole parental responsibility for DD for religion, health and education.
In arguing that the presumption should be rebutted, the father’s arguments pointed to an inability for the parties communicate effectively. He submitted the mother conceded in cross examination that she sees the father as the primary trigger for the presentation of her illness, by reason of which she wishes to recoil from exchanges with the father, saying, “I just can’t deal with him”. He argued that in education such as tutoring, the mother acted in a unilateral matter and could not be consultative with the father. He emphasised that “the last thing DD needs is a parental responsibility gridlock” bearing in mind DD is at a very challenging time of his life.
The mother argued that while the evidence disclosed problems with communication, communication is a pathway to agreement, and agreement, or the capacity to agree, is the critical consideration where parental responsibility is concerned. The mother contended that the evidence did not show that the parties ever had disagreements in relation to the children’s religion, and they were able to agree on CC and DD’s schooling.
There is some force in the mother’s arguments. But they seem to weigh in favour of the presumption being applied, which would be contrary to the mother’s primary position, that is, no order allocating parental responsibility. However, I am satisfied that the presumption is rebutted in the best interests of DD. My reasons are as follows.
I am satisfied the parties can reach and have reached agreement on some major long-term issues. It was not clear to me why the father sought sole parental responsibility on religious questions, or what areas of possible disagreement may exist in that regard. The father is Greek Orthodox and the mother is Catholic, but these differing denominational backgrounds have not been a source of disputation, according to the evidence before me.
More generally, as discussed above, the parties were able, during the proceedings, to agree on a number of issues in respect of all the children, which, in itself is some evidence of the ability to communicate. In cross examination, Dr R noted that the fact that the parents were able to agree on most of the parenting issues attests to their ability to communicate about long-term issues in respect of the children. He expressed the view that “communication is poor on day-to-day issues but… on some of the bigger issues… they’ve basically agreed. For example, the parents have been able to agree to DD and CC attending HH School.
The mother has made significant strides in overcoming barriers to her effective communication with the father. Dr R recorded that when he contacted Dr GG for the purpose of the 2019 report he was told:
… The mother finds the father very difficult to communicate with, and she prefers to use texts. Dr GG said she had seen a number of the text chains and if I understood her correctly, she felt that the father’s tone seemed very overbearing and uncompromising. However, she said that the mother has also made significant gains in terms of avoiding direct conflict with the father more effectively than she was in the past [p. 9, 2019 report].
The evidence also satisfies me that the parties have been able to reach agreement on matters of education, despite differences of opinion along the way. They have agreed upon a school for CC and DD in 2020.
But there was no dispute that decisions about health, and medical treatment had been and remained an area of significant disagreement. The arguments of both parties proceeded on the basis that the question of allocating parental responsibility for decisions about health should be answered by an assessment of risk. The specific risk was identified as the risk that the mother would repeat some of her past conduct relating to health treatment, discussed above, including self-medicating DD. The father argued that the mother’s history of unilateral decision making about medication, and psychological treatment showed she should not hold any responsibility for such decisions in the future.
The mother argued that the risk of her repeating her poor parenting conduct was low and could be adequately ameliorated by orders placing restraints upon her, rather than by making any order allocating parental responsibility. She relied on Dr R’ assessment that she has a broader and deeper understanding of the responsibilities of parenthood than the father but her compromised capacity to exercise those responsibilities with sufficient consistency was a problem. The mother also pointed out that Dr GG’s view was that her mental health had improved such that she could consider much more productively the needs and wishes of the children.
In submissions, senior counsel for the mother acknowledged the mother should not have self-medicated DD, but submitted the mother was at the time “in a very dark place”, from which she had now extricated herself.
Dr R agreed that health remains a serious battle ground. He expressed the view that it would be better for the father to have sole parental responsibility in respect of the decisions regarding health for both CC and DD, with a provision that the mother be kept fully informed by the father. His view about sole parental responsibility for DD in this regard seemed to be influenced by the fact that the father, by consent, has sole parental responsibility for CC. He said in his oral evidence:
I think it’s probably better if…the father has sole parental responsibility for health with both the children because there have been issues with both of them, and, you know, issues to do with judgment about the child’s health state and judgment about the use of medications and stuff of that sort.
Effective decisions about DD’s health will need to be made for another six years. Although the mother impressed Dr R as generally having a better and broader understanding of the needs of the children, I am not satisfied that the mother’s problems with capacity have been removed or sufficiently attenuated to permit constructive joint decision making with the father about major long-term health issues for DD, despite the improvements in the mother’s ability to communicate with the father and her mental health as identified by Dr GG. Dr R described the father’s home as a relatively more stable and predictable environment for DD. This factor is also consistent with the father having sole responsibility for decision making about DD’s health. I find that it is in DD’s best interests that responsibility for such decisions be allocated to the father.
On balance I am persuaded that the considerations, discussed above, especially under ss 60CC(3)(b) and (f), the mother’s vulnerability to disrespectful behaviour and lack of authority, and her mental health problems, relevant to the best interests of DD, coupled the matters discussed in [112] to [116], support a conclusion that the presumption is rebutted. An order for equal shared parental responsibility for DD is not compelled by application of the presumption. It follows that I do not accept the mother’s fall-back position on parental responsibility.
Having said that, I am not persuaded, for the reasons given at [108] to [111] above that the father should be allocated sole parental responsibility for issues of religion or education. I am satisfied the parties should exercise shared parental responsibility for DD in respect of education and religious matters, but not health. In my view, it is in DD’s best interest for one parent to make decisions regarding major long-term health issues, and it should be the father. In order to assist with this decision making I am also satisfied that an order should be made for both parties to comply with any treatment plan or guidelines recommended by the children’s treating medical practitioners or other therapists
In Damiani (No. 2) (supra) at [141], the Full Court held that quite apart from the presumption, s 64B(2)(c) of the Act provides that a parenting order may be made that deals with the allocation of parental responsibility for a child. It may be that it is in the best interests of a child that the parents have shared parental responsibility. If the order proposed was that the parents were to share parental responsibility then it may also deal with “the form of consultations [they] are to have with one another about decisions to be made in the exercise of that responsibility” (s 64B(2)(d) of the Act). I am satisfied that the orders proposed by the ICL regarding parental responsibility are appropriate in the circumstances.
DD’s Time with the Mother
Although the parties agreed he should spend half the school holidays with the mother, the duration of DD’s term time with her could not be agreed. All parties proposed block time. As already noted, the father and the ICL proposed each alternate weekend from 5:30 pm Friday until 5:30 pm Sunday, or Monday, if a public holiday. The mother proposed each alternate weekend from the conclusion of school on Friday until the commencement of school the following Wednesday. No party proposed a continuation of short evening visits by DD with his mother.
The mother pointed to the evidence of Dr R in his 2019 report at p. 37 that if the Court was satisfied the mother can manage to an acceptable level, “then longer single blocks covering alternate weekends may be plausible, of four or possibly five nights. I see no benefit to short evening visits such as occur at the moment on Thursdays.”
In his oral evidence, Dr R stated that whilst the mother remained vulnerable, she is not assertive with the children. The mother is non-confrontational with CC especially, but also with DD. He continued to state that DD is a child who needs educational support. Dr R was clearly influenced by the mother’s “… horrendous record of failed pickups, late pickups and … failed or late drop-offs, and lack of appropriate preparation for him to go back … to school, like no lunch or something of that sort.” There was no factual dispute that the mother had the poor record Dr R adverted to. Despite improvements in her mental state, Dr R remained concerned that “if DD prevaricates or puts up resistance or something like that, then particularly getting him off to school would be an issue, like on a Monday, Tuesday and a Wednesday morning”, if the mother’s proposal was accepted.
Dr R confirmed that it would be logistically better if CC and DD had the same schedule, assuming CC chose to spend time with his mother as contemplated in the consent orders, subject to his wishes. The consent orders provide for CC to spend time with his mother from 5:30 pm on the relevant Fridays until 5:30 pm on Sunday or until 5:30 pm on Monday if a public holiday. In his oral evidence, Dr R was asked whether he held any concern that if CC refused to spend time with his mother then DD would follow CC. Dr R did not perceive this to be an issue.
There was undisputed evidence that the mother has been able to take BB to and from TAFE. The mother submitted this showed “management as well as application” and should lead the Court, despite the concerns of Dr R, to have greater confidence that she would transport DD to and from school appropriately, if orders were made for DD to spend the longer duration of time with her.
She also submitted that the father’s resistance to a longer block of time during school terms was not born of any genuine concern, because he had agreed to DD spending longer blocks of time with the mother during school holidays.
I do not accept the submissions of the mother. Doubts remain about her capacity to manage to an acceptable level while DD is in her care. As noted earlier in these reasons, under cross examination by counsel for the ICL, she could not give a strong and compelling assurance that she could get DD to school on time, despite the improvements in her mental health already adverted to earlier. In view of the difficulties the mother has with CC and disrespectful behaviour, these doubts are accentuated by the possibility that the mother may at times be caring for both CC and DD together. There is an important difference in this regard between term time and holidays. During school terms it is essential that DD comply with school regimes, get to school on time and be adequately prepared for the school day generally. These disciplines are relaxed during school holidays. Taking account of the mother’s presentation during her oral evidence, her irregular and deficient track record relating to DD’s school attendance, her vulnerabilities and the ongoing concerns in that regard held by Dr R, I am satisfied that the orders for time to be spent by DD with his mother should be for the shorter duration proposed by the father and the ICL.
In argument I raised with the parties the possibility of making DD’s time with his mother subject to his wishes once he turns 16. The ICL embraced the idea, while each of the parties submitted they would not be heard against it. I will include in the orders for DD’s time with his mother a provision that this time will become subject to his wishes upon him turning 16.
I have already made an order by consent for the father to deliver DD, and subject to his wishes, CC, to the mother’s residence at the commencement of her time on Friday afternoons each alternate weekend, and collect the children at the conclusion of her time. If CC chooses to spend time with the mother as contemplated by the consent orders, he can go with DD to the mother’s residence. The father can collect the boys at the conclusion of the mother’s time.
Restraints against medical appointments
The father agreed with the ICL’s proposed order 7. The mother submitted it should apply to both parties and not just her. Dr R agreed that such an order would be appropriate given the mother’s history with self-medicating the children. He noted that the mother’s issue with the children was not neglect, but rather over caring.
Mother to continue therapy
The mother agreed under cross examination that she would continue her psychiatric treatment with Dr GG, however, she did not want to be ordered to do so.
Dr R noted that the mother’s sessions with Dr GG were positive and agreed that a proposal to keep the mother attending therapy would be for the best. He noted that whilst she had improved, she still had a long way to go.
Dr GG was cross examined and confirmed that:
a)She would comply with Court orders if they required her to notify the father that the mother was not complying with her recommendations; and
b)She would comply with Court orders if they required her to notify the father that she could no longer continue to be the mother’s treating psychiatrist.
Although the mother resisted an order, I am satisfied that it is in the best interests of the children, not only DD, for the mother to participate in ongoing psychiatric therapy, and this should be formalised through a Court order. This should include an obligation on the mother to cause Dr GG to notify the father if the mother falters in following her recommendations or ceases treatment and if known, provide the identity of any new treating clinician”.
Family Therapy
The ICL proposed a form of order the thrust of which was family therapy addressing the mother’s relationship with CC: see proposed Order 5 at [26] above. The father opposed the proposed suborders 5(c)(ii) and (iii) on the basis that they suddenly expand the scope of the order beyond CC and either parent to include all the children. The mother made no submissions about the terms of this order.
Counsel for the ICL submitted that the terms of proposed order 5 follow closely the recommendations of Dr R at p. 31 of his report where he refers to a “family approach made up of two configurations: the children with their mother and the children with their father.”
However, as senior counsel for the father pointed out, the two older children, AA and BB will turn 18 on 1 May 2020. Thereafter they will not be amenable to any parenting orders of this Court. I accept the submission of the father that the terms of proposed order 5 should be modified so it does not prescribe the involvement of all the children, but only such other members of the family, besides the parents and CC as the counsellor recommends.
Ms FF
I note for completeness that the parties agreed upon a restraint regarding Ms FF as the ICL. In light of that agreement it is not necessary to go into any detail about this proposed order.
Conclusion
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, I am is of the view that the orders as set out at the commencement of these reasons are in the best interests of the child and accordingly, will so order.
Costs
Section 117 of the Act sets out that each party shall bear his or her own costs, subject to the considerations in s 117(2).
The ICL seeks an order for costs with each party to pay the sum of $12,614.00.
Any order for costs must also be determined in light of the substantive judgment and the relative success or failure of the parties. This is naturally something that can only be addressed after judgment has been delivered.
The Court proposes to make the orders and directions in relation to any application for costs that might be made as set forth in the orders at the commencement of these reasons.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 23 January 2020.
Associate:
Date: 23 January 2020
Annexure A
BY CONSENT:
That all prior parenting Orders in respect of the children AA and BB, both born … 2002, and CC born … 2005, be discharged.
That each parent have several parental responsibility for each and AA and BB.
That AA and BB live with the Father.
That AA and BB spend time with, and communicate with, the Mother in accordance with their wishes.
That the children CC and DD, born … 2007, live with the Father.
That the Father have sole parental responsibility for the child CC provided that the Father:
6.1Notifies the Mother of any proposed decision relating to the long term care and welfare of CC about:
6.1.1Proposed decisions about which school CC shall attend;
6.1.2Proposed decisions about the long term medical issues affecting CC;
6.2Ensures such notification is given to the Mother in writing at least twenty-eight (28) days before the final decision is made by the Father;
6.3Takes into consideration any views expressed by the Mother and respect to such proposed decisions; and
6.4Advises the Mother of his decision.
That in the event that the child CC does not wish at any time to spend time with his Mother pursuant to these Orders then the Father must prior to each such occasion notify the Mother that CC will not be attending with the child DD.
That the child CC subject to his wishes spend time with the Mother during school term time each alternate weekend from 5.30 Friday until 5.30 on Sunday or until 5.30 on Monday if a public holiday.
That the child DD spend time with the Mother as follows:
9.1For half of the school holiday periods falling between New South Wales School Terms 1 and 2, Terms 2 and 3 and Terms 3 and 4;
9.2For half of the school holiday periods falling between New South Wales School Terms 4 and 1, provided that DD is returned to the Father’s care by the commencement of the last weekend before the new school term.
That notwithstanding Order 9 hereof, the child DD and the child CC, subject to his wishes, shall spend time with the parties as follows:
10.1With the Mother, each year from 2.00pm on Christmas Day until 6.00pm on Boxing Day;
10.2 The Father and the Mother will each be entitled to spend three (3) hours with the child DD on their birthday(s) at times agreed between the parties;
10.3 The child DD and the child CC shall live with the Father during the Father’s Day weekend each year and if the child was to otherwise spend time with the Mother that weekend pursuant to these Orders hereof, then the child DD and the child CC, subject to his wishes, shall spend time with the Mother on another weekend in lieu of the Father’s Day weekend;
10.4The child DD and the child CC, subject to his wishes, shall spend time with the Mother during the Mother’s Day weekend each year and if the children were to otherwise live with the Father that weekend pursuant to these Ordershereof, then the said children shall spend time with the Father on another weekend in lieu of the Mother’s Day weekend;
10.5The child DD and the child CC, subject to his wishes, shall live with the Father during Greek Orthodox Easter each year from Wednesday until Sunday and if the children were to otherwise spend time with the Mother that weekend pursuant to these Orders, then the child DD and the child CC, subject to his wishes, shall spend time with the Mother on another weekend in lieu of the Greek Orthodox Easter weekend.
10.6The parties are at liberty to attend all events involving the child DD and the child CC including:
10.6.1Sporting fixtures;
10.6.2Extra curricular activities that allow for parental attendance;
10.6.3School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
That save and except in the event the Court Orders collection and delivery from school, the Father shall deliver the child DD and, CC subject to his wishes, to the Mother at the commencement of her time at the Mother’s residence, and shall collect the children from the Mother at the conclusion of the time with the Mother.
The Mother shall keep the Father informed of:
12.1.Any medical problems or illnesses suffered by any of the children while in the Mother’s care;
12.2.Any medication that has been prescribed for the child DD;
12.3.Any social, school or religious functions which the child DD or CC is to attend;
12.4.The residential address of the Mother and particulars of the others who may reside with her; and
12.5.Any other matter relevant to DD’s welfare.
The Father shall ensure that the Mother is kept informed of:
13.1Any medical problems or illnesses suffered by the children while in the Father’s care;
13.2Any social, school or religious functions which the children are to attend;
13.3The residential address of the Father and particulars of the others who may reside with him; and
13.4Any other matter relevant to the children’s welfare.
That for the purposes of communicating information between the parties the Father and the Mother shall:
14.1Communicate by telephone as to any matters of an urgent nature;
14.2Communicate by email or text about day to day matters including arrangements for the Mother to spend time with the child DD and the child CC, subject to his wishes.
That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline if available and mobile phone number if applicable) and advised the other party of any changes to these details within seven days of such change occurring.
That neither party shall medicate any of the children with prescriptions or other medication unless directed to do so by the children’s paediatrician or General Practitioner and the parties shall notify the other party in writing of any such prescribed medication.
Deleted.
That without admissions the parties are restrained from consuming alcohol to excess during any periods of time the children are in their respective care.
That the parties shall ensure the children sleep in their own bedroom for any period of time that the children are in their care.
That during any period referred to in these Orders, in the event of any child being hospitalised or receiving medical attention, the parent spending time with that child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
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