DENNING & DENNING

[2021] FCCA 1513

FEDERAL CIRCUIT COURT OF AUSTRALIA

DENNING & DENNING [2021] FCCA 1513

Catchwords:
FAMILY LAW – Interim parenting – mother seeking an order that children aged 12, 11 & 8 cease living in a week about arrangement and live with her and spend time with the father on alternate weekends – father proposing a continuation of week about or if a change has to be made for the children live with him and spend time with the mother – where the children’s preference is to continue to live week about – where the father has severe mental health issues and where there was police and DCJ involvement in 2020 as a result of the father not sending the children to school in his week – where this issue only resolved after the mother commenced proceedings – complex matter in which valid arguments can be made for and against ending the equal time arrangement – where on balance an order that week about cease and the children live with the mother and spend two out of three weekends with the father is to be preferred – mother to have sole parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 65DAA

Cases cited:

Goode & Goode (2016) FLC 92-236

Rice & Asplund (1979) FLC 90-725

Applicant: MS DENNING

Respondent: MR DENNING

File Number: NCC 3571 of 2020

Judgment of: Judge Terry

Hearing dates: 19 January & 3 May 2021

Date of Last Submission: 3 May 2021

Delivered at: Newcastle

Delivered on: 7 May 2021

REPRESENTATION

Counsel for the Applicant: Mr Duane

Solicitors for the Applicant: Brazel Moore Lawyers

Counsel for the Respondent: Mr Levick

Solicitors for the Respondent: Aubrey Brown Partners

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Gosford Family Law

THE COURT ORDERS ON AN INTERIM BASIS THAT:

1. The Orders made on 31 May 2018 are suspended.

2. The mother shall have shall have sole parental responsibility for the children X born in 2008, Y born in 2009 and Z born in 2013 (“the children”)

3. The children shall live with the mother.

4. The father shall ensure that the children are delivered to the mother at 10.00am on Saturday 8 May 2021 at Coles Town B.

5. The children shall spend time with the father from the conclusion of school on Friday until the commencement of school on Monday on two out of three weekends commencing on Friday 14 May 2021 and then occurring on 21 May 2021 with the weekend of 28 May 2021 to be spent with the mother and then continuing in a three week cycle.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The matter is adjourned to 9.30am on 10 June 2021 for further consideration.

2. Each of the parties and legal representatives have liberty to attend by telephone on 10 June 2021 by dialling in using the following details:

   (a)Phone:      [phone] Australia, Sydney (Toll)

   (b)b) Conference ID:  172 971 08#

   (c)c) If the court has muted participants, when the matter is called each party and legal representative will need to press *6 to unmute themselves.

3. The Independent Children’s Lawyer is granted liberty to apply to relist the matter at short notice should she consider it necessary.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3571 of 2020

MS DENNING

Applicant

And

MR DENNING

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a dispute about interim parenting arrangements for X, 12, Y, 11, and Z, 8. 

3. The children currently live in a week about shared care arrangement.  The mother seeks an order that the children live primarily with her and spend time with the father on alternate weekends from Friday to Monday.

4. The father proposes that the week about continue but says that if the court does not consider that suitable then the children should live with him and spend alternate weekends with the mother. 

5. There is also a dispute about parental responsibility and about whether orders should be made for holiday time.  The mother’s proposal does not seem to encompass holiday time that. However those are disputes on paper. The submissions I heard all focused exclusively on whether the existing equal time arrangement should remain in place or whether the children should live primarily with one of their parents.

6. It is a complex matter but the parties’ positions basically came down to this. 

7. The father conceded that there was an issue with the children attending school in his week in 2020 and that there was also a dispute about which high school X should attend. However those matters resolved after the mother filed her application in September 2020 and the father’s case was that in the light of this the court should not rush into changing the week about arrangement and should only consider doing that after a full and proper inquiry into the matter. 

8. The mother’s case was that the week about arrangement had been problematic from the time it was implemented in 2018 and in any event it had not been in place for the entire period from 2018 to the present. She acknowledged that the issue about the children attending school in the father’s week had been resolved, as had the choice of high school for X, but she said that the issue with the children attending school in the father’s week in 2020 was simply one manifestation of the difficulties which arose from the father having serious mental health issues. 

9. She said that the father still had those mental health issues and they were impacting on the children and could cause other difficulties in the future. It was her case the court needed to change the week about notwithstanding that those issues concerning the children had been resolved. 

10. The Independent Children’s Lawyer supported the cessation of the shared care arrangement and supported an order that the children live with the mother. She asked the court to consider however ordering that they spend two out of three weekends with the father rather than alternate weekends. 

Background

1. The parties commenced a relationship in 2007 and separated on 11 September 2016. Proceedings were commenced in 2017, and on 31 May 2018 final orders were made by consent which provided for the parties to have equal shared parental responsibility and for the children to live in the week about arrangement from Friday to Friday. 

2. At the time those orders were made, and indeed for much of the parties’ relationship, the father had serious mental health issues. 

3. At separation he also had a cannabis addiction. When he was admitted to Suburb C Hospital with suicide ideation in 2017 the amount of cannabis he was using was raised as an issue.  However orders were made requiring him to demonstrate that he was able to overcome his cannabis addiction and once he did the week about came into effect notwithstanding his mental health issues. 

4. The May 2018 orders were carried into effect for the rest of 2018 but by early 2019 the mother was of the view that they were not working. Y had ongoing issues at school and on 26 March 2019 the school raised concerns about the father’s presentation and behaviour. The mother said that she could not get the father to cooperate in ensuring that the children received counselling and on 29 March 2019 she retained the children in her care. 

5. That did not last very long. Y had been engaging in some self-harm and after the mother ceased the week about he began to have meltdowns which the mother found very hard to deal with. He became physically aggressive to her and his siblings and in May 2019 she decided to relinquish primary care of all three children to the father. The children then commenced living with the father and the mother spent alternate weekends with them. 

6. That occurred for the next six months but in November 2019 the mother told the father that she wanted to resume the equal time and the parties agreed to return to the 50/50 arrangement. 

7. About four months after that, in March 2020, we were hit with the COVID 19 pandemic and schools were closed for attendance by students.

8. For a short period after this the mother suggested that the children stay with the father because of her potential exposure as a result of her work to people who might be carrying the virus. However at some point prior to May 2020 the equal time arrangement resumed.

9. In May 2020 schools in New South Wales reopened but the father refused to send the children to school in his week. He became extremely paranoid about the virus, and although the Department of Education declared that the schools were safe and children should be attending the father was adamantly opposed to the children attending school in his week.  He believed they would be at risk of harm.

10. The mother said that the children began expressing fears that they would die of COVID 19 and expressing fear of leaving home and that she began experiencing behavioural issues. I cannot make findings about issues in dispute at an interim hearing but given the history of this matter and things the children said to the family consultant at the Child Inclusive Child Dispute Conference it seems probably that those things occurred. 

11. The children’s failure to attend school led to the Department of Communities & Justice (DCJ) becoming involved. They did a home visit and conducted an assessment at each party’s home. The police visited the father’s home in July 2020 arising out of the issue of the children not attending school and the mother also had some contact with the police because the Department of Education were firmly of the view the children should be attending school. 

12. The mother repeatedly asked the father to agree to the children resuming attendance at school but he would not. He wore his opposition to this with some pride. The mother attached to one of her affidavits a newspaper article in which the father provided information about why he thought what he was doing was the right thing. 

13. Y had some behavioural issues at school because the children were attending one week out of two and on 2 July 2020 he was given a long suspension following aggression to other students. The parents were unable to cooperate in resolving this issue with the school so that Y could at least go back to school in the alternate weeks. 

14. On 29 September 2020 the mother filed an application seeking orders that the children live with her.  By this time the parents were also in dispute about the high school X should attend in 2021 and she sought an order that he be enrolled at D School. The mother has an older child, E, who attends that school and she wanted X to go there. The father had a different preference and they had been unable to resolve that dispute either.

15. The mother’s application was given a short service listing and it became before me on 30 September 2020. The father was served shortly before the mention and he appeared by telephone. He had not filed any documents and I ordered that the parties attend a duty day child dispute conference.

16. In conversation with the family consultant the father was adamant that he was being protective of the children by not sending them to school. He admitted that he had mental health issues but denied they were impacting on his perception of risk from the pandemic. 

17. The family consultant expressed the view that missing significant amounts of school and experiencing inconsistent schooling was likely to cause the children confusion, social issues and learning delays and she recommended that they return to school full-time. Otherwise she said it was a complex matter which required further investigation and recommended a child inclusive conference and the appointment of an Independent Children’s Lawyer.

18. When the matter came back before me that afternoon the mother’s solicitor pressed me to make an order that the children live with the mother and that their time with the father be suspended.  However I had obtained some documents from the DCJ Liaison Officer which included the risk of harm assessment they had done following a visit to the father’s home. It did not support the mother’s claims about lack of food or unacceptable living conditions in the father’s home, and the children had told caseworkers that they were content living with the father.

19. As a result I was of the view that it was premature to consider changing the week-about arrangement. However I did make an order that the children attend school every day the school was open for attendance, which I considered was a sufficient response in the short-term.

20. An order was made for the father to file his documents and he did so.  In his response he asked the court to dismiss the mother’s application, pursuant to the rule in Rice & Asplund.[1] 

    [1] Rice & Asplund (1979) FLC 90-725

21. On 4 November 2020 when the matter came before me I made orders by consent for X to be enrolled at D School and for X and Z to attend counselling. The issue of whether they should attend counselling had been another thing the parents had been unable to agree on up to that point. 

22. Because the father sought dismissal of the mother’s application I listed the matter on 19 January 2021 for consideration of the Rice v Asplund issue and also for an interim hearing in respect of the mother’s application for parenting orders should I decide that the matter should remain on-foot. 

23. On 19 January 2021 I heard submissions from the mother’s counsel which encompassed both the Rice v Asplund issue and the mother’s application for interim parenting orders.

24. I asked the father’s counsel to address me on the Rice v Asplund issue because that needed to be determined before anything else happened.  After hearing those submissions I dismissed the father’s application that the mother’s application be dismissed pursuant to the rule in Rice & Asplund. 

25. I was of the view that there had certainly been a change of circumstance since the 2018 orders were made or perhaps to put it slightly differently, that the matter required further investigation. The orders for the week-about had not been consistently followed and significant issues were raised about the impact of the father’s mental health on his parenting capacity. There were issues with Y’s behaviour and issues about whether the parents could agree on the children attending counselling.  I was satisfied that there was sufficient there to warrant the parenting arrangements for the children being considered afresh. 

26. I formed the view however that if the application for interim orders was to proceed, I was going to need a Child Inclusive Child Dispute Conference. I made an order for a Child Inclusive Child Dispute conference to take place before anything further happened.

27. That was conducted on 5 February 2021 and the matter came back before me on 3 March 2021.  Due to the unavailability of the mother’s counsel on any earlier day convenient to the court the matter was listed on 3 May 2021 for continuation of the interim hearing. 

The mother’s case

1. The mother’s counsel submitted that there had been problems with the shared care arrangement since the orders were made in 2018 and there had not been a settled arrangement for the care of the children.

2. He made some submissions about the cannabis use issue but conceded that there was no evidence that the father currently using cannabis.  However he submitted that the father’s mental health issues were extremely concerning. They had led to the children missing a substantial amount of school in 2020.

3. The mother’s counsel noted that the father was engaged with a mental health practitioner at the moment but said that the evidence suggested that he had had inconsistent engagement in the past with mental health practitioners.

4. He referred to the information in the tender material about concerns which the father’s presentation and utterances had raised in the school chaplain and a counsellor. 

5. He referred to the fact that the parties had not been able to resolve the issues of school attendance in 2020, choice of high school for X or counselling for the children and he referred to the fact that the family consultant who saw the children for the Child Inclusive Conference was very clear that equal time was not appropriate for these children.

6. He submitted that although the parents had initially agreed on equal time it clearly hadn’t worked and it needed to end. 

7. The mother’s counsel noted that the children had told the family consultant at the Child Inclusive Child Dispute Conference that they did not want it to end but said that the mother was confident that she could manage the situation if the court made the orders she was seeking. 

8. He submitted that putting the children with the father, given the extent of his mental health issues, was simply not an acceptable alternative for the children. 

The father’s case

1. The father’s counsel submitted that the big disputes in 2020 had now been resolved. The father had formed a relationship with a psychologist and according to her he was now progressing well. The children did not want a change in their arrangements.

2. The father’s counsel said that given what happened in 2019 there had to be a real concern about whether the mother would cope if an order was made for the children to live with her full-time.

3. The father’s counsel also said, although he was very careful to couch this in a non-threatening way and called it a careful submission, that changing the parenting arrangements may push the father into a mental health crisis which would not be in the children’s best interests. The father said something similar to the family consultant at the Child Inclusive Child Dispute Conference. He said that he did not perceive reduction of his time to be a valid option and said that this may have an impact on his wellbeing as he would be unable to prevent something “not good” occurring for the children. 

4. The father’s counsel pointed out that the content of the Child Inclusive Child Dispute Conference memorandum and the opinions expressed by the family consultant in both the Child Dispute Conference and the Child Inclusive Child Dispute Conference memorandums were untested and that the court should not rush into making a change when the issues which arose in 2020 had been resolved. It should not make that kind of a change until there was a proper and careful consideration of the whole situation.

5. The father’s counsel submitted that if however the court felt that equal time should end then an order should be made for the children to live with the father. This would align better with their wishes, and there was no evidence the father had failed to cope with the children in the six months he had them in his primary care in 2019. 

The Independent Children’s Lawyer’s case

1. The Independent Children’s Lawyer supported orders that equal time end and the children live with the mother.   

2. She said that the court should be very concerned about the evidence in the tender bundle about the father’s mental health and its impact on the children. She referred to the information sourced to a chaplain and a counsellor and to information about Z referring to being taken into the father’s bed to comfort him, which she said the court should be particularly concerned about. She said that the children needed some respite from being required to ensure that the father was okay. 

3. The Independent Children’s Lawyer noted that based on their wishes the children were likely to miss the father and they did share an interest in music performance with him. She proposed that if the court changed the week about arrangement it should consider ordering that the children spend two out three weekends, rather than each alternate weekend, with the father. 

Disputed and undisputed matters

1. In Goode & Goode[2] the Full Court set out a pathway the court should follow in determining interim applications and I have followed that to the extent already in that I have identified the parties’ competing proposals. 

   [2] Goode & Goode (2016) FLC 92-236

1. In Goode & Goode the Full Court said that the court should also consider the disputed and undisputed matters.

2. There are many cases in which almost nothing is agreed. The interesting thing about this case is that the big issues are actually all agreed and the dispute is really about the implications of them. 

3. The mother’s counsel submitted, and it was agreed, that the children had a close and loving relationship with both of their parents. It was also agreed that they had told the family consultant that they did not want the equal time arrangement to end. 

4. The history of the father’s mental health issues was largely agreed. The mother’s counsel prepared a chronology which contained a variety of entries from the tender material. No issue was taken by the father’s counsel with the accuracy of that, and there is no doubt that the father has a lengthy history of quite severe mental health issues.

5. In 2017 he was taken to Suburb C emergency department with suicide ideation. In April 2017 a psychologist working with him reported that he was feeling intense anger toward the mother and having difficulty sleeping and that he had low mood and problems with concentration and motivation. There is reference, and I only have a summary here and I am not sure if this is an opinion, to the father having significant symptoms of PTSD including avoidance, recurring distressing memories and hypervigilance. It was noted that the father had some traumatic childhood issues which continued to impact on him.

6. It was suggested on 11 April 2017 that the father had a major depressive disorder. In September 2017 he visited his GP who noted that he had suicidal ideation every day which was worse when he was by himself and subsided when the children were around. 

7. There is a reference in a F Disability Benefits form dated 17 January 2018 to the father having a deterioration of a major depressive disorder and anxious distress. That might have been reporting a history but it confirms the extent of his mental health issues. 

8. During a visit to his GP on 3 May 2018 the father was said to have expressed frequent suicide ideation and planning within the last 24 hours and to have said that sometimes he planned it by hanging with cables at home but was unsure how he would do it.  That was only a few weeks before the final orders were made. 

9. On 3 October 2018 the father had a mental health assessment.  A doctor noted his thoughts were difficult to keep on track and that he was sometimes preoccupied with thoughts and concerns for his children’s safety and wellbeing, and he made some negative comments about the family law system.

10. There is a letter from a psychiatrist dated 10 October 2018 describing a long history of difficulties with the father’s mental health in which the doctor noted:

    Risk of self-harm to others is low as no active suicidal ideation but risk of harm remains chronic in longer term due to maladaptive coping skills and poor anger and impulse control.

11. After the mother retained the children in April 2019 the father had a crisis. On 23 April 2019 he presented to the Suburb C Emergency Department with suicide ideation.  He admitted having anxiety and panic attacks affecting his function and was later scheduled.  There is an interesting reference in the notes at this time as follows:

    Father scheduled in context of escalation of suicide ideation and anxiety on the background of depression and anxiety and personal vulnerability stemming from his borderline personality disorder –

12. That is the only reference I can see to the father having borderline personality disorder and what weight I can place on that I do not know, but regardless of the diagnosis there is ongoing concern about his mental health. 

13. On 19 November 2019 the father had a mental health assessment and there is reference to suicidal ideation and hostile thoughts towards ex-wife’s solicitor. There is reference to various possible diagnoses but at the moment I cannot place weight on those.  

14. On 5 March 2020 the father had a mental health review and it was noted it was his first contact since 17 December 2019 as he had cancelled three previous visits. Delusional component to thoughts noted, particularly of a persecutory nature regarding ex-wife’s solicitor. 

15. There is no dispute that the father has quite a severe mental illness.  I do not know exactly what label should be put on it and in due course. We are likely to get a report providing a psychiatric assessment of the father but there is no doubt that he has quite severe mental health issues. 

16. The father is on a disability support pension and it is apparent from all of the material that his mental health issues impact on his day-to-day functioning. His mental health must have had an impact on how he dealt with the COVID-19 crisis. When the Department of Education decided that children should go back to school the father was unwilling for that to occur and that resulted ultimately in the matter coming before the court. There is reference in the material to the father having thoughts from time to time, perhaps obsessive thoughts, about the need to keep the children safe. 

17. There are other things that are not in dispute.  One is that the parents could not agree to the children attending school in 2020 and the father would not send them until the Court made an order for that to occur. 

18. There is no dispute that Y had issues in 2020 and had a long suspension which the parents for a very long time could not resolve. 

19. There is no dispute that the parents could not agree on X and Z attending a counsellor until the matter came before the Court.

20. There are some disagreements or some things that are not agreed or admitted. One of them is that the mother has made allegations of family violence, including coercive and controlling behaviour and emotional abuse. I cannot make a finding about where the truth lies about that.  There is reference in the material to the father having some anger issues but what will come of those allegations I do not know.

21. Another issue that I cannot make a finding about is whether there is any risk of the father relapsing into cannabis use. There is no evidence that he is currently using but some testing may have to happen.

22. I cannot make findings about those matters but there many things that are not in dispute, and the difficulty is what then to do with the matter.

Discussion

1. The matter is complex and strong arguments can be made for and against changing the current arrangement. 

2. Arguments that could be made against changing it are these:

   i)The children do not wish it to change. They have had long experience of what the father is like and they told the family consultant that they wanted the equal time arrangement to continue.

   ii)When the mother withheld the children from the father in April 2019 Y acted out and the mother was not able to manage his behaviour, and not only did she give him back to the father, she actually relinquished equal time for six months.  There has to be a question mark over whether the mother is going to manage if the Court puts the children in her primary care. 

   iii)The father’s mental health may decompensate if the Court changes the arrangements. That happened in April 2019 after the mother withheld the children.  The issue which arose was serious and resulted in him being scheduled, and if the father’s mental health deteriorates it would be likely to cause enormous distress for the children and could make them angry with the mother. 

   iv)The Court can place only limited weight at this stage on the evidence of the family consultant, which is untested, or rather, when I say the Court can place limited weight on it, the family consultant has expressed a view that equal time should not continue, but her evidence is untested. It is the result of a snapshot interview with the family and there is a possibility that a different family consultant on a different occasion may say something different. 

   v)The children have experienced numerous changes since separation and it could be argued that another change should not be imposed on them given the lack of certainty about whether it is actually going to be the best possible outcome for the children.

   vi)Since the matter has been in Court and the children have been ordered to return to school, things have been going okay for them at school, and the parties are now able to agree on all of the children seeing a counsellor.

   vii)While there are significant concerns about the father’s mental health and about the fact that in the past he has disengaged from mental health support, he is currently engaged with a new psychologist.

   viii)There is no evidence the father has used drugs for some time.  The risk of relapse may be a trial issue, but it is not a reason to immediately change their residence. 

   ix)The father’s counsel argued that the Court should not change the orders because the mother consented to them in 2018 knowing the father’s mental health issues. She also left them in his full time care in 2019 for six months despite knowing that and in March 2020 she left them in his full time care for a short period when she decided they might potentially be exposed to COVID through her involvement in the community and she wanted to keep them safe. On several occasions the mother had left the children either in the father’s full time care or in a shared care arrangement, well knowing the extent of his mental health issues, and it was a bit rich for her now to be saying that the Court should end equal time simply because of a concern about his mental health. 

3. In summary the argument against change is that as a result of the mother commencing proceedings things have been pulled into line and the children are attending school and the Court should hang fire about making any further changes until it had some reports and is able to be sure that it was doing was the right thing.

4. However there are arguments that can be made in favour of a change.

5. This is not a case in which there has been a long trouble-free shared care arrangement since separation. The children lived in the shared care arrangement from May 2018 to April 2019.  The mother had increasing concerns and in April 2019 she withheld them.  There was a short period when they were with her, then six months in which they lived primarily with the father and then about four or five months when they were back in shared care. 

6. Then COVID came along. For a relatively short period the children lived primarily with the father. They then lived week about but this resulted in the serious disruption of them only attending school one week out of two between May and September when the Court made an order. 

7. Although the mother agreed to the equal time in May 2018 she has always been concerned about the father’s mental health and the impact it has on his parenting and on the children. That was why she withheld them in April 2019, and her concerns ramped up again when he behaved the way he did about their schooling in 2020, and that led her to bringing her application. 

8. This is not the case in which there has been a lengthy period where the mother has not been concerned about the father’s mental health.  It is apparent from the material that she has always been concerned about it, but at various stages she has chosen to agree to certain arrangements.

9. The matters which have no doubt played into her decision about the time the children spend with the father include her knowledge that they love him and her problems with Y, but it is not fair to say that the mother has not been worried in the past or was not worried prior to 2020 about the impact of the father’s mental health on his parenting capacity and is now suddenly bringing it up as an excuse to end the equal time arrangement. 

10. To put it another way, the mother commenced proceedings in 2020 as a result of being at her wits end about how to solve the problems that arose during 2020 with the children not attending school one week in two, the Department of Communities and Justice becoming involved, the police becoming involved and Y receiving a long suspension which the parents were unable to resolve.

11. She made attempts to resolve the problems arising from the father’s mental health issues by retaining them in April 2019, then stepping out of their lives for a period in 2019 and also by trying to organise counselling, but the problems just kept happening.

12. The children may be presenting as reasonably settled at school at the moment but over time a number of people have expressed concerns about the father, his presentation at school and the things the children have been saying about what is happening in his home. 

13. I could leave the children where they are and hope that while this matter was investigated no other problems arose.  But other problems could arise and recent problems have been solved only because the Court has made orders. 

14. There is also a considerable risk in this matter that while the children are saying that they do not want the equal time to end, there could be an element of them putting their own needs behind the father’s needs. It is gravely concerning that the father had a hospital admission and was scheduled after the mother withheld the children from him in April 2019, and that he told the family consultant that if the Court altered the equal time arrangement it was very likely to have an adverse impact on his mental health. 

15. There is some suggestion in the material that Z at least, and the other children are older so it is impossible to believe that they would not be aware of it, is aware of the father’s issues. The children may well be putting their own needs behind the father’s in saying the things they are about what they want for the future. 

16. I could leave the equal time arrangement in place, and there is a risk that changing it will not work, but the mother does not have any disabling parenting issues. She has an older child in her care and there was no suggestion that child has any issues.  It is true that she gave up in May 2019 because she could not manage Y’s behaviour but she has come back to Court now and sought orders and if I make them she will have some power in her corner as a result of that. Also there is an Independent Children’s Lawyer to assist in coordinating the children’s attendance at services should there be any ongoing issues with the children. 

17. The family consultant expressed the view that this matter was not suitable for equal time, and she did not just say that, she said she was strongly of that view. The memorandum is untested but running the ruler of the considerations in section 65DAA (5) of the Family Law Act over this matter makes it very clear that it is not suitable for an equal time arrangement.

18. It would be in the children’s best interests to change that and to make an order that the children live primarily with one of their parents and it has to be the mother. It would be illogical to place the children with the father when the reason for ending the equal time arrangement depends so heavily on the mental health issues he is suffering from.

19. I hope that the father does not have another severe mental health episode as a result of this but the existing arrangement should be changed.  The mother should be given a chance to see what she can do.  It is a change for the children after a number of other changes but it is in the children’s best interest to give them some clear air and the stability of living with a parent who does not suffer from mental health issues, and seeing if that has some positive impact in terms of their adjustment and in relation to Y’s issues. 

20. It is also in the children’s best interests for me to make an order on an interim basis for sole parental responsibility.

21. I indicated at the beginning that I did not hear any submissions about parental responsibility but it follows from everything that I have said that this is a matter in which I need to make an order the mother to have sole parental responsibility for the children. I need to make it because these children require ongoing counselling and support and everything about the matter suggests that the parents are not going to be able to agree about that and so in my view it is in the children’s best interests for me to make an order on an interim basis for sole parental responsibility.

I certify that the preceding ninety seven (97) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate: 

Date:  6 July 2021